Evaluating evidence in criminal procedure in Viet Nam specialty: Criminal law and criminal procedure

Firstly, in many cases, the evidence is not collected fully, exactly, and

comprehensively; sometimes, statements are over appreciated so that evident

materials are ignored in crime scene examination, cadaver examination

Secondly, while investigating criminal cases, sometimes Police investigation

authorities collect, evaluate evidence illegally which affects the quality of the

settlement of criminal cases. Besides that, the role of People’s Procuracy is not

effectually performed while administering criminal investigations, the co-operation

relationship between Police investigation authorities and People’s Procuracy is not

well-performed. This situation leads to return case files for further investigation

and affect the quality of the settlement of criminal cases and citizen’s rights

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iminal Procedure Code [91], 2015 to the practice of resolving criminal cases by competent procedural authorities have achieved important results [94, 93, 68]. Every year, the Police investigation authorities, People’s Procuracy, and Courts at all levels accept and settle a large number of criminal cases, the injustice and neglect are increasingly limited. Investigators, procurators, and judges at all levels have been active and proactive straight accepting and studying dossiers, quickly and lawfully settling assigned cases. However, in reality, there are still limitations and shortcomings such as, in terms of theory, a theoretical system of evidence assessment has not yet been built, there are no specific guidelines and processes for assessment evidence; In practical terms, the collection of evidence from scene examination, autopsy, interrogation of the suspects ... is sometimes limited, leading to an inadequate and incomplete assessment of the evidence, not fully considering the attributes of the evidence, incorrect judgment about the nature of the case ... Besides, there are some cases 3 that use unevaluated evidence or insufficient evidence in the process of making procedural decisions ... All these shortcomings and limitations have significantly affected the quality of handling criminal cases, affecting the reputation of people, affecting the legitimate rights and interests of entities engaging in proceedings. Therefore, it is necessary to continue to research the theory and practice of evidence assessment in criminal cases to improve the quality and effectiveness of criminal case settlement in Vietnam. For the above reasons, the study of the topic "Evaluating Evidence in Criminal Procedure in Viet Nam" is urgent, not only in theory but also in practice today. 2. Purpose and question of the research 2.1. Purpose of the research The thesis researches theoretical and practical issues on evidence assessment in criminal proceedings in Vietnam today in a systematic way to enhance the effectiveness of evaluating evidence in criminal procedure in Vietnam. 2.2. Question of the research The dissertation has synthesized some published works on evidence assessment in criminal proceedings in countries alongside Vietnam hitherto. Through that, the thesis evaluates the achieved results and the un-mentioned issues of these works to propose questions that need further research and interrogations other than the research methods of the thesis. The thesis studies theoretical issues on evidence evaluation such as the concepts, characteristics, principles of evidence assessment, evidence assessment criteria, content analysis, evidence assessment methods in proceedings. Criminal. 4 The thesis studies the current provisions of Viet Nam's Criminal Procedure Code on evidence assessment; research and analyzes the current situation of evidence assessment in criminal proceedings in Vietnam in the 10 years from 2010 to 2019 and the first 6 months of 2020. From there, evaluate the limitations and shortcomings of assessment activities. Evidence in criminal proceedings and find out the cause. The thesis proposes directions and solutions to improve the evidence evaluation quality in criminal proceedings in Viet Nam in the coming time. 3. Subject and scope of the research 3.1. Subject of the research Based on the above research purposes and tasks, the research objects of the thesis are the following issues: - Research overview of scientific works related to the topic. - Research on evaluation of evidence in criminal proceedings. - To study the provisions of the Criminal Procedure Code on evidence assessment. - Research on evidence assessment practices in criminal proceedings in Vietnam in the current period. 3.2. Research scope - The scope of research on the content: To study evidence assessment activities in the stage of the investigation, prosecution, and adjudication of procedural agencies. 5 - Scope of research on space: Research topic on evidence assessment activities of agencies conducting legal proceedings nationwide. - Scope of time: The subject is studied for a range of 10 years from 2010 to 2019 and the first 6 months of 2020. 4. Research Methodology and Methods The thesis is studied based on the methodology of dialectical materialism and historical materialism, as well as the views of Marxism-Leninism, Ho Chi Minh's thought on the state and the law, on the procedural model, about the organization and power of the state apparatus, which includes the bodies conducting the proceedings. Based on the methodology on the topic, the thesis uses a combination of the following research methods: analysis, synthesis, comparison, evaluation, judgment study, and statistics ... Stemming from the basis of the above scientific methodology, the topic uses specific research methods in each chapter as follows: Chapter 1 uses the scheme of historical research, comparison, analysis, and synthesis to research the overall situation of the topic research. On that basis, draw out the object, scope, issues that need further research in the thesis. Chapter 2 mentions some central issues of evidence evaluation theory in criminal proceedings, the author uses methods of analysis, synthesis, comparison, commenting, and comparison to draw are research conclusions. Chapter 3 analyzes and evaluates the situation of evidence assessment in criminal proceedings in Vietnam over the past 10 years and at the same time points out the limitations, shortcomings, causes of drawbacks, and shortcomings. 6 Research methods on synthesis, statistics, generalization, especially research on specific cases to draw research conclusions. Chapter 4 focuses on directions and solutions to improve the quality of evidence assessment in current Vietnamese criminal proceedings. The author mainly uses research methods of analysis, presentation, interpretation, propositions to give specific solutions. 5. New contributions of the thesis This research is a systematic and relatively complete, comprehensive study on evidence assessment in criminal proceedings in Vietnam today. - The dissertation has researched published scientific works related to the topic. - This is a doctoral-level research jurisprudence that goes into depth in evidence assessment in criminal proceedings; contributes to supplementing theoretical and scientific bases for evidence evaluation. - The thesis researches and analyzes the actual situation, assessing evidence in the means of resolving criminal cases from the stage of the prosecution to the investigation, prosecution, trial to draw out several limitations and shortcomings and the causes affecting the quality of evidence evaluation. - The thesis proposes to amend several provisions to better improve the criminal procedure law on evidence evaluation. - The thesis also proposes solutions to improve the quality of evidence evaluation activities in criminal proceedings in Viet Nam by procedural agencies in the current period. 6. The scientific and practical significance of the thesis 7 The topic has researched several theoretical issues about evidence assessment in criminal proceedings. In chorus researched the difficulties and problems in evidence evaluation practice in criminal proceedings of the subjects directly assess evidence, thereby giving scientific explanations on the implementation and implementation, supplementation, issuance of new legal documents, building a mechanism to ensure the convenience for people who directly assessing evidence in criminal proceedings to improve the efficiency of this activity in the process of resolving criminal cases, contributing to further advancing the quality of evidence assessment in criminal proceedings response to judicial reform request. Simultaneously, the thesis will be a reference source for research and teaching in law training institutions and training for legal titles and staff at the local competent procedural authorities proceedings. 7. Thesis structure The thesis has 04 chapters besides the introduction, conclusion, references, data tables, dissertation, appendixes, Chapter 1. Overview of the research Chapter 2. Theoretical issues about the assessment of the evidence in criminal proceedings Chapter 3. The provisions and practicality of evidence evaluation in criminal procedure in Viet Nam Chapter 4. Direction and solutions to enhance the effectiveness of evaluating evidence in criminal procedure in Viet Nam 8 Chapter 1. OVERVIEW OF RESEARCH SITUATION 1.1. Research situation in the world 1.2. Research situation in the country 1.2.1. Group of studies related to evidence assessment theory in criminal proceedings 1.2.2. Group of studies related to the current situation of evidence assessment in criminal proceedings 1.2.3. Group of research works related to solutions to improve evidence assessment quality in criminal proceedings in Vietnam 1.2.4. Group of other related research 1.3. Evaluate the research situation related to the Thesis 1.3.1. Agreed issues that the thesis will inherit and continue to develop 1.3.2. Some problems posed for the research of the thesis topic 9 Chapter 2. THEORETICAL ISSUES OF EVIDENCE EVALUATION IN CRIMINAL PROCEDURE 2.1. Notions, characteristics, and principles of evidence evaluation in criminal proceedings 2.1.1. Evidence evaluation notion in criminal proceedings Evaluation of evidence in criminal proceedings is cognitive activity and logical thinking of subjects based on applying scientific knowledge, legal regulations, legal consciousness, and practical experience, and internal beliefs to determine the proof value of each piece of evidence and the overall evidence collected in the process of proving the truth of the case; assessing evidence at the later procedural stage, will clarify the nature of evidence more deeply, more accurately, comprehensively and completely than in the previous proceedings. 2.1.2. Evaluation of evidence in criminal proceedings Firstly, evidence evaluation is a cognitive activity, logical thinking to determine the proof value from the information obtained in the evidence collection process. Secondly, evidence evaluation is the general application of scientific knowledge, provisions of law, based on the legal consciousness of practical experience and internal beliefs of the subjects assessing evidence. Third, assessing evidence is a purposeful activity. Fourth, the assessment of the evidence in criminal proceedings is conducted regularly and continuously throughout the means of carrying out legal proceedings and has a close relationship with the evidence collection and examination. 2.1.3. Principles of assessing evidence in criminal proceedings - Principles of compliance with laws in evidence assessment 10 - Principles of honesty, objectivity, comprehensiveness, and completeness - Principles of ensuring human rights in the evidence assessment process - Principle of evidence assessment in favor of the suspects, defendants. 2.2. Criteria for assessing evidence in criminal proceedings 2.2.1. Criteria for the Party's, Government's and people's perception of the role of procedural agencies in assessing evidence 2.2.2. Judging criteria based on the basic principles of criminal proceedings 2.2.3. Perception criteria about the objective reality of crime occur 2.3. Contents and methods of assessment of the evidence in criminal proceedings 2.3.1. Evidence evaluation content 2.3.1.1. Evaluate evidence from evidence sources - Evaluate evidence from evidence - Evaluate evidence from testimonies and presentations - Evaluate evidence from concluding examinations - Evidence assessment from electronic data - Evidence assessment is the type of record of prosecution, investigation, prosecution, and trial - Evaluate evidence from results of judicial mandate and international cooperation 2.3.1.2. Evaluation of evidence in stages of proceedings - Evidence evaluation during the prosecution phase 11 - Evidence assessment in the investigation stage - Evidence assessment during the prosecution phase - Evidence evaluation activities during the first instance trial stage - Evidence evaluation in the appellate trial stage 2.3.2. Evidence evaluation method - Methods of observation - Comparative method - Method of evaluating each evidence individually - Evidence synthesis assessment method 12 Chapter 3: THE PROVISIONS AND PRACTICALITY OF EVIDENCE EVALUATION IN CRIMINAL PROCEDURE IN VIETNAM 3.1 The provisions of the evidence evaluation in criminal procedure in Vietnam 3.1.1 The provisions of the evidence evaluation in criminal procedure code 1988 According to Point 1, Article 48 of the Criminal Procedure Code 1988, “Evidence is de facto and collected as per the sequence and formalities defined by this Law which are used by Police investigation authorities, People’s Procuracy and People’s Court to determine a crime, perpetrators of such crime and other valuable facts for the settlement of the case.” Article 50 of the Criminal Procedure Code 1988 states: “Investigator, Procurator, Judge, and Lay assessors shall determine and evaluate all evidence with a full sense of responsibility after studying generally, objectively, comprehensively and fully all circumstances of the cases.” 3.1.2 The provisions of the evidence evaluation in criminal procedure code 2003 Article 66 of the Criminal Procedure Code 2003 states: “(1)Each evidence must be evaluated to determine its legality, authenticity, and relevance to the cases. The collected evidence must be sufficient for the successful settlement of criminal cases. (2) Investigators, procurators, judges and jurors shall identify and evaluate all evidence with a full sense of responsibility after studying generally, objectively, comprehensively and fully all circumstances of the cases.” 3.1.3 The provisions of the evidence evaluation in criminal procedure code 2015 Article 108 of the Criminal Procedure Code 2015 states the inspection and evaluation of evidence: “1. Each evidence must be inspected and evaluated to 13 verify its validity, authenticity, and connection with the case. The verification of evidence acquired must be adequate to settle criminal cases. 2. Authorized procedural persons within their powers and duties must inspect and evaluate all evidence of the case in full, unbiased, and thorough manners.” By researching the provisions of the Criminal Procedure Code 1988, 2003, 2015 proved that: the legislative technique of Vietnam has improved through each period by removing unclearly by clearly detailed semantic words. 3.2 The practicality of the evidence evaluation in criminal procedure in Vietnam 3.2.1 Achieves 3.2.1.1 Evaluating evidence in the state of charge and investigation Recently, there are more and more dedicate, insidious crimes that result in huge damage to our society. Many cases are complicated but the authorities identified and evaluated exactly so that the case was solved rightly. A lot of state properties have been recovered from economical cases. In many cases, Police investigation authorities performed investigation measures and collected, evaluated evidence rapidly; the evidence was compared to identify the facts of the cases; the state of analyzing evidence was performed carefully in detail. The results of the state of evaluating evidence are used to determine events of the case and its causes and conditions. Especially in some cases, crime scene examination is a must, collecting, evaluating, and using traces are very effective. 3.2.1.2 Evaluating evidence in the state of prosecution. In the state of prosecution, the activity of evidence evaluation of People’s Procuracy is to test evidence that was collected previously, parallelly, People’s Procuracy collects and evaluates new evidence. In the time of prosecution, 14 People’s Procuracy examines case files, evaluates all evidence, and make decisions of legal procedure: If grounds for prosecution is sufficed, the suspect(s) is(are) prosecuted in a Court through a charge. If the case files must be returned for further investigation, People’s Procuracy must return them to Police investigation authorities; If there are no grounds or in case there is a provision, the cases must be dismissed or adjourned. 3.2.1.3 Evaluating evidence in the state of adjudication The activity of evidence evaluation of court is performed through the result of the trial, on collected evidence in case files, and the trial. Recently, many huge economical cases with complicated circumstances are solved strictly and rightly; the quality of trial of People’s Court is boosted. 3.2.2 Limitations and their causes 3.2.2.1 Evaluating evidence in the state of charge and investigation Firstly, in many cases, the evidence is not collected fully, exactly, and comprehensively; sometimes, statements are over appreciated so that evident materials are ignored in crime scene examination, cadaver examination Secondly, while investigating criminal cases, sometimes Police investigation authorities collect, evaluate evidence illegally which affects the quality of the settlement of criminal cases. Besides that, the role of People’s Procuracy is not effectually performed while administering criminal investigations, the co-operation relationship between Police investigation authorities and People’s Procuracy is not well-performed. This situation leads to return case files for further investigation and affect the quality of the settlement of criminal cases and citizen’s rights. Thirdly, while collecting, evaluating evidence, much unobjective evidence is used which makes the settlement of cases illegal. 15 3.2.2.2 Evaluating evidence in the state of prosecution. Firstly, while examining evidence collected by Police investigation authorities, some People’s Procuracy can not identify mistakes of Police investigation authorities in collecting evidence, this leads to evaluate evidence incorrectly and inaccurate decisions; or can not identify deficiencies of Police investigation authorities to propose requirements for the investigation to guarantee the objectify and comprehension of cases. Secondly, the state of evaluating criminal activities and perpetrators is performed inaccurately. In this situation, sometimes the Court declares the (a) defendant(s) not guilty. Thirdly, some cases are not well-examine by the competent procedural authorities generally and People’s procuracy particularly; information from statements of defendants, suspects, witness testifies, crime victims, plaintiffs and the time and situation of the criminal cases; determine defendant’s crime inaccurately because prosecutors do not fully understand criminal elements. 3.2.2.3 Evaluating evidence in the state of adjudication Firstly, evaluating evidence to determine crime sometimes is inaccurate. Secondly, the conviction is not accurate because the Court sometimes evaluates evidence incorrectly and incomprehensively. Thirdly, solving civil matters sometimes are not satisfied because the Court ignores or evaluates the situation unobjectively. 3.2.2.4 Causes of Limitations - Crimes are more and more hazardous and complicated, especially economic cases with too much information. 16 - The available scientific rationale is still not sufficient for the authorized procedural person to evaluate evidence while solving criminal cases - In some People’s Procuracy units, the number of prosecutors is not proportional to the number of cases and the qualifications of prosecutors are also not similar. This lay a huge pressure on its leaders. - The organization and operation of competent procedural authorities are still not reasonable, the provisions of the state of the investigation, prosecution, and adjudication are limited. - The co-operating relationship between Police investigation authorities and People’s Procuracy is sometimes not good. - The qualifications and experience of some Investigators, Prosecutors, Judges are still limited. - In some circumstances, because prosecutors do not examine the cases carefully or their experience is limited, they propose unexact requirements; this may exacerbate the investigation. - Some leaders do not perform fully their responsibility while solving cases. - In some places, the facilities are not meet the requirement for solving criminal case activities. 17 Chapter 4: DIRECTION AND SOLUTIONS TO ENHANCE THE EFFECTIVENESS OF EVALUATING EVIDENCE IN CRIMINAL PROCEDURE IN VIETNAM 4.1 Direction to enhance the effectiveness of evaluating evidence in criminal procedure in Vietnam 4.1.1 Evaluating evidence in solving criminal cases of Police investigation authorities, People’s Procuracy, People’s Court need to meet the purpose and requirement of the Juridical reform process of the Vietnam Communist Party 4.1.2 Enhancing the quality of evidence evaluation by boosting the qualification of authorized procedural persons 4.1.3 Adapting to the new situation while evaluating evidence. 4.2 Solutions to enhance the effectiveness of evaluating evidence in criminal procedure in Vietnam 4.2.1 Perfecting legal regulations of criminal procedure and scientific rationale system of evaluating evidence 4.2.1.1 Perfecting legal regulations of criminal procedure related to evidence evaluation Firstly, changing the definition of evidence in article 86 of the criminal procedure code. Secondly, changing the provision of electronic data in point 3 article 99 of the criminal procedure code and amending some provisions relating to electronic data. Thirdly, changing the provision in point 2 article 87 of the criminal procedure code. 18 4.2.1.2 Researching on perfecting the effectiveness of evidence evaluation in criminal procedure in Vietnam 4.2.2 Some general solutions to enhance the effectiveness of evidence evaluation in criminal procedure in Viet Nam 4.2.2.1 Guaranteeing the command of Vietnam Communist Party about organization and operation of competent procedural authorities Firstly, strengthening the political standpoint of officers in Police investigation authorities, People’s Procuracy and People’s Court; guaranteeing all activities of competent procedural authorities meet the requirement of the Vietnam Communist Party. Secondly, enhancing the role of the Vietnam Communist Party and its member's incompetent procedural authorities. Thirdly, continuing to perfecting the way of co-operation between agencies of Vietnam Communist Party and competent procedural authorities through the periodic reports. 4.2.2.2 Enhancing the co-operation relationship among competent procedural authorities while evaluating evidence 4.2.2.3 Enhancing skills, qualifications, and ability of authorized procedural persons 4.2.2.4 Performing and perfecting the method of monitoring conducted by the authorities which is elected by citizens and citizens. 4.2.2.5 Improving facilities and benefit of investigators, prosecutor, judge, and lay assessors. 19 4.2.3 Some particular solutions to enhance the effectiveness of evidence evaluation of competent procedural authorities in every step of solving a criminal case. 4.2.3.1 Focusing on reporting and spreading experience in investigation, prosecution, adjudication criminal cases. 4.2.3.2 Solutions for Police investigation authorities Firstly, enhancing the qualification of investigators and investigation officers Secondly, enhancing the effectiveness of using special methods of investigation 4.2.3.3 Solutions for People’s Procuracy Firstly, enhancing the qualification of prosecutors. Secondly, enhancing the prosecutor’s skills in proposing an investigation requirement. Thirdly, enhancing the effectiveness in administering Police investigation authority while special methods of investigation are used. Fourthly, returning documents for further investigation carefully and effectively 4.2.3.4 Solution for People’s Court Firstly, enhancing the qualification of judges Secondly, returning documents for further investigation carefully and effectively. 20 CONCLUDE Assessment of evidence is a very complex operation of the criminal proof process. With the research scope of a doctoral thesis, the postgraduate does not have the ambition to solve all aspects of the evidence evaluation, but only foc

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