The quality of first-Instance trial for criminal cases in Hai Duong province

For the Party's agencies in Hai Duong, the two-level court’s trial is

conducted through meetings and working reports of the Standing

Committee. Here the local Party Committee issues Resolution on the trial

work for the whole year and period rather than interfering and directing

how to heard specific cases.

For other proceeding-conducting agencies: The Court always expresses

its independent opinion over the Investigation Agency and the Procuracy in

evaluating records, evidences, conclusions and indictments.

For the internal relations of the court system, as required by the

independent principle in hearing, the lower Court does not depend on the

direction of the superior Court. In fact, however, the superior Court has

authority to correct and cancel the judgment of the lower People's Court.

Moreover, the provincial People's Court is organizationally managed the

district People's Courts under authorization of the Supreme People's Court,

so the independence among the Courts is only relative. In fact, the lower

Court’s shyness and respect for the superior Court is inevitable

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, 2003 emphasizes the rules of the Court’s trial, mechanisms of ensuring the court’s operation and factors affecting the court’s performance. From studies mentioned above, it can be seen that evaluation of the trial quality has been examined in Vietnam, but the study on criteria for quality evaluation of applying the law of the Court or the trial quality has just mentioned general criteria and without component criteria, and there is no linkage among criteria for evaluating the trial quality with factors affecting the trial quality. 1.2. Research situation abroad 1.2.1. Research works on the conception of trial quality The term “quality” is often used as a technical concept to refer to the quality of goods, services or providing the quality of goods and services in private sector. Then, the idea of “quality thinking” is applied to evaluate services-provided not only by the private sector but also by the public sector including the judiciary. Thus, the terms “quality of justice” or "judicial quality” appeared. Accordingly, “justice” is considered a public service and the quality of justice means the quality of providing a public service. These studies have partly mentioned “trial quality” and “trial quality for criminal cases” but they have not given the concept of “trial quality”. However, these studies’ goal is to “measure” the Court’s trial activity. 1.2.2. Research works related to criteria for trial quality In 2006, the UN Office on preventing Drugs and Crime along with judicial authorities in several countries carried out a study and pointed out six basic areas of the Court's activities, including: (1) access to justice, (2) timeliness; (3) the independence, justice and impartiality of the Court; (4) uniformity; (5) accountability and transparency of judicial authorities; (6) coordination among stakeholders in the judicial sector. In the US, judges and scholars have proposed an initiative to develop an evaluation system aims at enhancing the court’s fair and effective trial capacity. The outcome of this initiative is the Court's performance standards 8 with 68 indicators for 22 standards in 5 different areas, including: (1) access to justice; (2) timeliness; (3) Equality, fairness and unity; (4) Independence and accountability; (5) public confidence. The reform program of Dutch Judiciary has been implemented since 1999 based on the experience of the US Court’s Standard of Operations and offers 5 areas of assessment including (1) independence and unity; (2) timeliness of proceedings; (3) uniformity of the law; (4) expertise and (5) treatment of the parties. Since 1995, Finland has developed a set of judicial quality assessment criteria in 6 areas including (1) the process; (2) judgment; (3) treatment of the parties and the public; (4) promptness of proceedings; (5) competence and career skills; and (6) organize and manage trial activity. Thus, many models for assessing judicial quality and court quality have been developed in each country, region and globally over the past 60 years. The models’ direction is to not only assess the court’s organizational aspects but also assess how the court performs its functions and duties, as well as the people’s feel and satisfaction about the Court. 1.3. General assessment 1.3.1. The research results inherited by the dissertation 1.3. Overall assessment of research situation Previous research works have mentioned and analyzed trial activity in the name of state power or the state’s trial function, this is the basic theoretical basis for determining “trial quality”. Many foreign studies and some domestic studies have examined “judicial quality”, “the court’s quality” and “trial effectiveness”, this is the basis for the author introduces the concept of “trial quality” and distinguish the concept of “trial quality” from “trial effectiveness”. 1.3.2. Issues need to be further examined The dissertation seeks to examine and present concepts such as “trial quality”, “the quality of first-instance trial for criminal cases” and criteria for the quality of first-instance trial for criminal cases. The dissertation seeks to systematize the provisions of the law related to assessing the quality of first-instance trial for criminal cases and analyze 9 factors affecting the quality of first-instance trial for criminal cases in Vietnam. Chapter 2 THEORETICAL ISSUES ON THE QUALITY OF FIRST-INSTANCE TRIAL FOR CRIMINAL CASES 2.1. The concept and role of the quality of first-instance trial for criminal cases 2.1.1. The concept of the quality of first-instance trial for criminal cases From analysis and interpretation in terms of linguistics and exercising judicial power, as well as analyzing principle of two-level trial by the court and first-instance trial as a procedural stage, the author points out 6 characteristics of first-instance trial for criminal cases including: - The process of exercising judicial power by the state. - The process of exercising basic function of the criminal proceedings that is trial function. - As the first and compulsory trial level for any criminal case. - Hearing the whole case including all contents of a criminal case (except cases partially canceled for investigation or re-trial). - It is conducted on the basis of the Prosecution’s indictment. - The nature of first-instance trial for criminal cases is applying law of the court. From above analysis, the author introduces the concept: “First-instance trial for criminal cases is an activity in the name of the state conducted by a competent Court at the first and compulsory trial level for a criminal case based on the Prosecutor’s indictment to resolve the case and deciding whether defendant is guilty or not, and applying penalties and judicial measures for the defendant, as well as dealing with other contents of criminal case (except cases canceled for re-hearing). By analyzing the concept of “quality”, comparing “quality” with “efficiency” and “performance”, the study approaches the concept of “quality” from perspective of suitability or responsiveness to the purpose and requirement by this concept: The quality of first-instance trial for 10 criminal cases is defined as the degree of satisfying purpose and requirements of the first-instance trial for criminal cases by a competent court. 2.1.2. The role of first-instance trial for criminal cases The study also analyzes and points out the role of first-instance trial for criminal cases that is: contributing to ensuring and respecting human rights and citizen rights; to prevent effectively and promptly handle all crimes; to ensure democracy, justice and equal rights of parties in the process of determining the truth of the case and criteria for assessing prestige of the court. 2.2. Criteria for the quality of first-instance trial for criminal cases 2.2.1. The concept and meaning of criteria for the quality of first- instance trial for criminal cases Criteria for the quality of first-instance trial for criminal cases is nature and effect as a basis for identifying, classifying, and evaluating the degree of meeting objectives of first-instance trial for criminal cases. While conducting the study, it is necessary to distinguish “criteria” from “indicators”. Criteria should be understood as the goals (standards) need to be achieved, while indicators are used to measure or determine value of that goals. 2.2.2. Criteria for trial quality in judicial system of several countries around the world and experience for Vietnam In the US: CourTools developed by National Center for State Courts. The CourTools includes 10 indicators for evaluating performance as follows: (1) Approach and Equity; (2) Resolution rate; (3) Resolution time; (4) Unprocessed volume of cases; (5) Certainty of trial date; (6) Reliability and integrity of case files, (7) Collection of fines, (8) Effectiveness of using jury, (9) Court staff satisfaction and (10) Cost for per case. In European Countries: In the framework of the Quality Project, a Quality Standards Task Force was established in 2003 to provide a set of trial quality standards including six areas: (1) the whole process; (2) Decisions; (3) How to treat litigants and people; (4) The speed of 11 proceedings; (5) Qualifications and professional skills of judges; (6) Organizing and managing trial. In Australia: The Performance Review Commission has issued a “Report on public services”, in which, comparing the performance of courts across Australia. The main indicators in the report including timeliness; the cost of solving each case and the rate of solving cases. In Singapore: Singapore launched “the International Framework for Court Excellence” (IFCE) to assess the court quality including 6 areas: (1) The ability to lead the court; (2) Court personnel; (3) Court strategy; (4) Court infrastructure and procedures; (5) The ability of participants to participate in the proceedings; (6) Desired results. Studying trial quality models in some countries around the world, we can see that there is not specific model or criteria for assessing the quality of first-instance trial for criminal cases. Countries around the world tend to assess the court performance quality or judicial quality in a broader category than “trial quality” and there is not common model or criteria in countries. However, we can give some experiences for Vietnam: it is necessary to define the core values of the Court and trial activity because this is the basis for defining and building criteria for trial quality. These criteria should be built to reflect the feelings and views of the persons concerned and others involved in a case. Building criteria for trial quality should be done by reasonable order, from determining objectives of hearing to selecting indicators and methods of data collection and evaluation. 2.2.3. Proposing criteria for the quality of first-instance trial for criminal cases From analysis mentioned above, the study proposes basic criteria for assessing first-instance trial quality for criminal cases: (1) Guaranteeing criminal proceedings Trial quality is not only the quality of judgment but also the quality of process means proceeding procedures because it directly affects the disputing parties’ ability to access to the court and defend their rights and interests at the court. If the criminal proceedings are carried out in practice, 12 it also means that the fundamental and important principles of the criminal proceedings will be taken seriously and thereby the objective truths of the case will be determined. Moreover, in order to make a legal, lawful verdict or decision, the court's trial activities must also strictly comply with the provisions of the criminal proceedings. (2) Quick and timely trial Quick and timely trial of a criminal case means that the court will resolve criminal case as quickly as possible and not prolonged. Promptness and timeliness in the first-instance trial for criminal cases based on the following indicators: The case is resolved in an optimal time (the shortest time) in accordance with the provisions of criminal proceedings. The time of resolving the cases is extended must be based on justifiable grounds and reasons, and strictly comply with the provisions of the criminal proceedings. Proceeding participants feel that the first-instance trial for criminal case was carried out quickly. (3) The court’s verdict is correct This criterion includes the following indicators: First, the Court's verdict is correct. Second, the verdict is consistent with crime’s nature and danger to the society, identity and aggravating and mitigating circumstances of criminal liability of the offender. This criterion is assessed by the indicators about the court verdict rate was appealed, injustice rate and the rate of verdicts was corrected and canceled. (4) Ensuring the standard of form and style of the verdict The verdict is a procedural document, it is not product of the judge but the product of the court, in the name of the state. Therefore, besides content, the verdict’s form must also comply with a strict standard, the style must be legal, concise, clear and easy to understand. The standard of form and style of the verdict is reflected by component indicators including the corrected and canceled verdicts due to wrong style, misspellings, grammar, without logic and incorrect calculation data. The evaluation of the Appeal Court, the Judgment Execution Agency, proceeding participants and the people to understand the verdict’s content. (5) Ensuring transparency and publicity 13 Transparency and publicity are an important value of the Bangalore principle on judicial behavior and international documents on human rights such as the Universal Declaration of Human Rights and European Convention on Human Rights. The principles of transparent and public trial are also provided in the 2013 Constitution, the Criminal Procedure Code and other legal procedural documents. Transparency and publicity of the Court can be assessed by the following criteria: (1) The people and media’s access to the process of resolving cases by the Court. (2) The people and media’s access to the verdict and other relevant information. This criterion requires that the verdict must be posted publicly and by means that the people can access and assess the verdict. 2.3. Factors affecting the quality of first-instance trial for criminal cases 2.3.1. Completion of the provisions of the law relating to the first- instance trial Trial nature is applying law. Therefore, completion of the provisions of the law is the factor affecting the quality of first-instance trial for criminal cases. This completion is shown in the following criteria: (1) The comprehensiveness of the provisions of the law relating to the first-instance trial for criminal cases; (2) Consistency and uniformity of the legal provisions relating to the first-instance trial for criminal cases; (3) The fairness of the legal provisions relating to the first-instance trial for criminal cases. 2.3.2. Principle of judicial independence Judicial independence is a common value of state power in the contemporary society. It is a means and tool to achieve goals in exercising state power. Judicial independence is shown in all three aspects: (1) The independence of the judicial branch from the legislative and executive branch. Thus, the Court must be institutionally independent, this means that it must have an organizational system with separate operating regulations, not similar to the legislature and the executive; (2) The independence of judges, jurors, and people's jurors while hearing, excluding all acts of direct 14 or indirect interference of other individuals or organizations; (3) the independence of each hearing level. 1.3.3. Controlling judicial power in first-instance trial for criminal cases Judicial independence is an important value of a democratic society and a fundamental principle of the rule-of-law state. However, judicial power as part of state power can also be abused and it needs to be controlled. Therefore, the Court's trial should be checked and supervised by state authorities, the People's Procuracy, socio-political organizations, the mass media and the people. All these supervision and inspection activities create pressure upon the Court in general and the Judges in particular force them to judge in a timely, fair, objective and lawful manner. 2.3.4. Enforcement capacity of the court system The enforcement capacity of the court system is the ability to perform and fulfill its functions and duties on the basis of objective and subjective conditions and factors. The enforcement capacity of the local court system is shown in the following aspects: (1) The organizational structure and jurisdiction of the local People's Courts; (2) The ethical standards, competency and skills of Judges; (3) Facilities and technical means to ensure the Court's adjudication. Chapter 3 CURRENT STATE OF THE QUALITY OF FIRST-INSTANCE TRIAL FOR CRIMINAL CASES OF TWO-LEVEL PEOPLE’S COURTS IN HAI DUONG PORVINCE 3.1. Evaluating the quality of first-instance trial for criminal cases of two-level People's Courts in Hai Duong province 3.1.1. Evaluating by criteria for ensuring the proceedings From 2011 to 2019, two-level People's Courts of Hai Duong province resolved and heard 9451 criminal cases at first-instance level with 17993 defendants, but there were no cases violating procedures and proceedings that leading to unjust conviction of innocent people, omission of crimes or being dismissed by the appellate or cassation panel; there were some cases 15 to be corrected by the appellate and cassation panel but its rate is much lower than that allowed by the Supreme People's Court. However, there were still violations of procedural order and proceedings when hearing by the two-level People’s Courts of Hai Duong province as follows: In the stage of preparing for first-instance trial: there are still cases that the Procuracy “owe” the indictment and the record of delivering evidence. The assignment of duties to the Judge is not shown in writing and the decision to return the file for additional investigation without legal grounds. Some people's jurors do not spend enough time studying case files. At the first-instance trial, many judges were negligent, they have roughly and generally explained rights and obligations of defendants and proceeding participants. The questioning at the court panel is still formal and accusations. The interrogation process mostly put responsibility on the Judge, while the people's assessor and procurator are rarely shown their responsibility. There are still unresolved cases, the content of judgment does not reflect and follow the trial panel progress, the judgment is not consistent with decision. The delivery, sending and serving of judgments are still slow. 3.1.2. Evaluating by criteria for prompt and timely trial Due to many different subjective and objective reasons, the proceeding- conducting agencies in Hai Duong province rarely apply the shortened procedures. According to statistics of the People's Court of Hai Duong province, from 2011 to 2019, the two-level People's Courts just applied the shortened procedures for 56/8683 cases, accounting for 0.64%. In Hai Duong province, the investigation, prosecution and adjudication under normal procedures have not violated the deadline but still quite slow and not in time. The trial panels of two-level courts ensure the statutory time-limit. However, if there are provisions on the time-limit for preparing trial in detail and more suitable with the nature of each case, Judges work more urgently, the time for resolving cases can be shorter. 3.1.3. Evaluating by criteria of the court’s judgement From 2011 to 2019, the People's Courts of Hai Duong province tried 8,683 criminal cases with 16,095 defendants at first-instance level, but there 16 was no case to unjustly convict innocent people. The rate of sentences being cancelled and corrected by appellate and cassation is much lower than that allowed by the Supreme People's Court. There were 1654/8683 (19%) cases tried at the court of first instance to be appealed with 2572/16095 (16%) defendants but only 4/2572, accounting for 0.16% of defendants were corrected for crimes by the provincial appeals level; 40/2572 defendants, accounting for 1.56% of defendants were corrected for civil liability, handling of evidences and court fees; 35/2572 defendants, accounting for 1.36%, were corrected to increase the imprisonment penalty level; 341/2572 defendants, accounting for 13.3% of the reduction of imprisonment; 4/2572 defendants, accounting for 0.16%, were exempt from criminal liability or penalty; 607/2572 defendants, accounting for 23.6%, were changed from a term of imprisonment to imprisonment for suspended sentence or non- custodial sentence; 11/2572 defendants, accounting for 0.43%, were transferred a suspended prison sentence to a term of imprisonment. The number of first-instance judgments that were canceled by the appellate level, cassation to investigate and re-trial under the first-instance procedures was only 32/8683 cases, accounting for 0.37%. By examining two forms of correcting cases at the court of first-instance with highest proportion including transfer a term of imprisonment to a suspended prison sentence or non-custodial sentence (607/2572 defendants) and reducing the prison sentence (341/2572 defendants), it can be seen that the main reason leading to the appellate court corrects the first-instance judgment is that the defendant presented extenuating circumstances of criminal liability at the appellate level. 3.1.4. Evaluating by criteria for ensuring standard of style and form of the judgment Basically, first instance criminal sentences at two-level People's Courts of Hai Duong province have met requirements of a judgment form, the judgments are written in the correct form and information, they show fully and accurately the court’s arguments and conclusion about issues that need to be solved. From 2011 to 2019, no first instance criminal judgment of the two-level People's Court of Hai Duong province was canceled or modified 17 due to the judgement form. However, there are still first-instance criminal judgments being experienced by the appeal court due to misspellings, incorrect arguments, inaccurate data, confusion of name, date of birth of those who participated in the proceedings. 3.1.5 Evaluating transparency and publicity of the trial process Transparency in the first-instance trial for criminal cases at two-level people’s courts of Hai Duong province as follows: First, Procedural procedures, working schedule, trial schedule, process of resolving and hearing criminal cases, and identifying evidence when resolving specific cases were publicly listed at the headquarters by the People's Courts of Hai Duong province and on the website portal of the Court. However, there are still limitations of some activities to publicize criminal proceedings at the two-level People's Courts of Hai Duong province. For example, in some cases, not timely transferring notices and procedural documents, even forgetting to send. Second, along with the public trial at the court office, each year, the two- level People's Courts of Hai Duong province conduct itinerant trial of hundreds of criminal cases, demonstrating the publicity and transparency in trial. From 2011 to 2019, two-level People's Courts of Hai Duong province conducted itinerant trial a total of 2551 criminal cases. However, the itinerant trial of criminal cases at the two-level people’s courts also led to inadequacies affecting the trial quality such as courtroom did not guarantee solemnity and lack of means for hearing cases. Third, after 02 years and 06 months of implementing Resolution No. 03/2017/NQ-HDTP dated March 16, 2017 of the Judicial Council of the Supreme People's Court on publicizing judgment and decision that took effect, from 1 July 2017 to 31 December 2019, the People's Court of Hai Duong province publicly announced 953 judgments and decisions took effect on the Court’s website, the people’s court of 12 districts and cities of Hai Duong province announced a total of 6854 judgments and decisions. 18 3.2. Evaluating factors affecting the quality of first-instance trial for criminal cases at the two-level people’s courts of Hai Duong 3.2.1. Evaluating the provisions of the law relating to first-instance trial for criminal cases The 2015 Criminal Code had progress in building components of crime and concretizing penalty framework so to apply consistently and accurately the law of the two-level people’s court in Hai Duong and reducing missing crime, wrong conviction and penalties so that improving the quality of first- instance trial for criminal cases. The 2015 Criminal Procedure Code (CPC) has many new progresses: there have been many new regulations to ensure the litigation of criminal court panel such as adding the principle of “guaranteeing litigation in the trial”, and recognizing the principle of “innocence speculation”. The 2015 CPC added new proceeding participants as well as regulations on rights and obligations for those t

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