Theoretical and practical issues on the prosecution of imprisonment execution in Vietnam

lity of the Procuracy's prosecution of imprisonment execution in Vietnam. 6 B. RESEARCH RESULTS Chapter 1 THEORETICAL ISSUES ON THE PROSECUTION OF IMPRISONMENT EXECUTION 1.1. Definition of prosecution of imprisonment execution Prosecution of imprisonment execution is both procedural, administrative - judicial in nature. It is a judicial activity which exercises state power. Therefore, it is required to have a mechanism for supervising and prosecuting these activities. In Vietnam, one of the mechanisms for examining and supervising imprisonment execution is the People's Procuracy's prosecution of imprisonment execution. These activities have the following characteristics: - Prosecution of imprisonment execution aims to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect and handle all law violations in imprisonment execution timely and strictly. - Subject of the prosecution of imprisonment execution is the People's Procuracy. - Objects of prosecution of imprisonment execution are acts and decisions of competent agencies, organizations and individuals in imprisonment execution (in the implementation of the order and procedures for imprisonment execution; positions, functions, tasks, powers and relationships between the competent agencies in imprisonment execution; tasks and powers of responsible individuals; rights and obligations of individuals sentenced to imprisonment; imprisonment management and education of imprisonment executors...). - The scope of prosecution of imprisonment execution is from the legal effect of Court's judgment or decision to the termination of imprisonment execution. “Prosecution of imprisonment execution is a summary of activities of the People's Procuracy for detecting, overcoming and handling law-violated acts and decisions by competent agencies, organizations and individuals. It is 7 conducted from the legal effective date of the Court's judgment and decision to the termination of imprisonment execution with the purpose of ensuring the imprisonment execution in accordance with the law, respecting and protecting human rights, detecting and handling all law violations in imprisonment execution timely and strictly". 1.2. The content of prosecution of imprisonment execution The content of prosecution of imprisonment execution can be divided into two groups of activities: Firstly, prosecution of imprisonment execution to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect and handle all law violations in imprisonment execution timely and strictly (directly and indirectly prosecuting imprisonment execution, examining requested law events, directly taking measures according to the law in prisonment execution). Secondly, prosecution of imprisonment execution to ensure that all law violations in imprisonment execution are handled timely and strictly (initiating the order of review from the beginning; requesting the prosecuted agencies to pay a breach of time-bound and binding from effect temporarily suspending the observance of certain administrative or judicial decisions, especially those decisions relating to citizens' rights). 1.3. Distinguishing the activities of prosecuting of imprisonment execution from the activities of examining and supervising the imprisonment execution of other agencies Prosecution of imprisonment execution activities of the People's Procuracy, together with activities of examining and supervising the imprisonment execution of elected bodies, social organizations and citizens, of the Inspectorate are aimed to ensure the strict and consistently-executed State's law on imprisonment execution. The differences as follows: - Prosecution of imprisonment execution activities of the People's Procuracy is different from activities of examining and supervising the imprisonment execution of elected bodies, social organizations and citizens in 8 the implementing subjects, modes and supervising rights. The People Procuracy's prosecution of imprisonment execution activities itself is under the supervision of elected bodies, social organizations and citizens. In addition, that activities of the People Procuracy are conducted in executing imprisonment; while the supervision of imprisonment execution by elected bodies, social organizations and citizens is carried out outside that process which is not a regular and continuous activity due to their legal status and organizational structure. Proposals of elected bodies, social organizations and citizens do not lead to legal consequences like the Procuracy's requests or petitions. - Prosecution of imprisonment execution aims to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect and handle all law violations in imprisonment execution timely and strictly. Meanwhile, inspection aims to examine the implementation of policies, laws, duties and powers of agencies, organizations and individuals to detect loopholes in management mechanisms, policies and laws to improve management quality. - Prosecution of imprisonment execution is judicial activities while the inspection of imprisonment execution is an administrative examination to serve administrative management. When examining or inspecting, the subject of inspection, examination and management not only has the right to detect laws violations but also has certain administrative rights in handling violations. For the Procuracy, when detecting violations, they have no administrative right over the supervised agencies, organizations and individuals. 1.4. Factors affecting the quality of Prosecution of imprisonment execution The following factors affect to the quality of prosecution of imprisonment execution: - Legal factor; - Material facilities, equipment and remuneration regimes; - Qualifications and capabilities of officials and Prosecutors; - Morality, consciousness and responsibility of officers and Prosecutors; 9 - Cooperative relationship between the Procuracy and competent agencies, organizations and individuals in the prosecution of imprisonment execution. Chapter 2 VIETNAMESE LAW ON PROSECUTION OF IMPRISONMENT EXECUTION AND IMPLEMENTED PRACTICES 2.1. Provisions of Vietnamese law on prosecution of imprisonment execution 2.1.1. Provisions on prosecution of imprisonment execution from 1945 to before the Law on Organization of People's Procuracies in 2014 In Vietnam, the Prosecutor's Institute was established before the establishment of the People's Procuracy (1960). In 1946, based on the first Constitution, the Procuracy was established in the Court system from the provincial level upwards, under the Ministry of Justice and has the function of examining prisons. Prosecution of imprisonment execution has been prescribed as a form of activity by the Prosecutor's Institute. Since the establishment of the People's Procuracy in 1960 based on the 1959 Constitution, the duties and powers of the People's Procuracy in executing imprisonment sentences has been stipulated in legal documents. However, prosecution of imprisonment execution is a special activity with the object is the acts and decisions of competent agencies, organizations or individuals in the execution of imprisonment in a content and procedural relationships. Therefore, in addition to the provisions of the criminal procedure law, prosecution of imprisonment execution is also stipulated in the Law on Organization of the People's Procuracies, the Law on Law on execution of Criminal Judgments and other legal documents. The regulations all show the purpose of ensuring the imprisonment execution in accordance with law; respecting and protecting human rights; detecting and handling all law violations in imprisonment execution timely and strictly. 2.1.1.1. Provisions on prosecution of imprisonment execution to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect all law violations in imprisonment execution timely 10 In order to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect all law violations in imprisonment execution timely, Vietnamese law at this stage prescribes the People’s Procuracy have the following duties and powers: directly and indirectly prosecute imprisonment execution; request the Court to discuss, consider exemption, postponement, temporary suspension or suspension of serving imprisonment penalties; appoint Prosecutors to attend meeting to consider exemption or reduction of imprisonment term; directly handle complaints and denunciations in management and education of imprisonment executors. 2.1.1.2. Provisions on prosecution of imprisonment execution to ensure that all law violations in imprisonment execution are timely and strictly handled In order to ensure that mission, Vietnamese law at that time has regulated the rights of the People's Procuracy: request individuals and agencies that commit violations to overcome violations; protests and petitions; prosecute or request to prosecute criminal cases; issue a decision to immediately release the unfounded and illegal imprisoned prisoner. By studying the provisions of Vietnamese law at that time on prosecution of imprisonment execution, it can be comcluded that: First, the introduction of the Law on Organization of the People's Procuracy in 1960 marked the establishment of the People's Procuracy as an independent institution. This is a prerequisite to formulate specific provisions on the functions, tasks and powers of the People's Procuracy in prosecution of imprisonment execution. Second, there are some inadequacies in Vietnamese law at that time: - The 1988 and 2002 Criminal Procedure Codes provide general provisions on the prosecution of imprisonment execution that leads to the lack of strict legal grounds when the Procuracy prosecute imprisonment execution according to the Criminal Procedure Code. - There is no direct regulations on the compliance with the laws of the Court in imprisonment execution. 11 - Lack of regulations on the Procuracy's right to propose cases of reducing imprisonment terms. - It is inappropriate in regulations of the People's Procuracy that it proposes suspension of serving imprisonment sentences. - Lack of regulations on the People's Procuracies requiring the Court which makes judgments and decisions to explain and correct unclear points in judgments and decisions for execution. - Lack of provisions on the time limit of the Court, Criminal judgment enforcement agencies, Criminal judgment enforcement agencies, agencies assigned with some criminal judgment execution duties are responsible for implementing the recommendations of the Procuracy. - Lack of provisions in the Law on Organization of People's Procuracies, Law on Execution of Criminal Judgments on the rights of the People’ Procuracy in appealling by appellate procedures, cassation or reopening procedures for decisions on reduction or exemption the time limit for serving the Courts' imprisonment sentences to provide legal basis for the Procuracy. 2.1.2. Current provisions of Vietnamese law on prosecution of imprisonment execution Inheriting the provisions of the 2003 Criminal Procedure Code, the 2015 one continues to regulate prosecution of imprisonment execution. However, the 2015 Criminal Procedure Code does not contain regulations on the duties and powers of the Procuracy in executing judgments and judgments. 2.1.2.1. Provisions on prosecution of imprisonment execution to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect all law violations in imprisonment execution timely Current Vietnamese laws on the prosecution of imprisonment execution have new important points compared to the former ones: - Replace the term “regular and irregular monitoring of compliance with the law...” by “direct prosecuting”. - Supplementing the regulations on appointing Prosecutors to attend meetings related to conditional parole in the 2015 Criminal Procedure Code and the 2019 Law on Execution of Criminal Judgments. 12 2.1.2.2. Provisions on prosecution of imprisonment execution to ensure that all law violations in imprisonment execution are timely and strictly handled Current Vietnamese laws on the prosecution of imprisonment execution have new important points compared to the former ones: - The 2015 Criminal Procedure Code supplements the provision that the Procuracy has the right to ask the Court to make a verdict or decision to explain and correct unclear points in a judgment or decision. - Supplementing the provision: the right to request competent agencies to make an application for conditional parole (in case detecting prisoners who are eligible for parole but they are not recommended); make a proposal to shorten the probationary period for conditional parolees (in case conditional parolees who are eligible to shorten the probation period but they are not recommended) - More specific provisions on the rights of the People's Procuracies to propose and protest in the implementation of imprisonment sentences. However, by studying the current Vietnamese law’s provisions on prosecution of imprisonment execution, the author recognizes some following limitations: - The 2015 Criminal Procedure Code has not overcome the limitations of the 1988 and 2003 ones yet because of the lack of regulations on duties and powers of the People's Procuracy in prosecuting the execution of criminal judgments, including prosecution of imprisonment execution; lack of regulations on the duration that the Court must explain and correct unclear points when receiving requests. - The 2014 Law on Organization of the People's Procuracies does not stipulate appeal right of the People's Procuracy to the appellate, cassation or reopening procedure for decisions on reduction, exemption from serving sentences, conditional perole or cancelling the decision of conditional perole, enforce the imprisonment penalty of the sentence given suspended sentence by the Court to fit with the 2019 Law on Execution of Criminal Judgments. 13 - The current laws have not overcome the limitations in the previous provisions in stipulating the People's Procuracy to suspend the serving of imprisonment sentences. At the same time, there is a lack of regulation of direct prosecuting the compliance of the Court with laws that restricts the prosecution of imprisonment execution. In addition, the current law does not regulate the Procuracy’s request right for the prisoners that meet all conditions but have not been proposed to reduce the terms of serving imprisonment sentences or conditional parole to immediately overcome violations and ensure lawful rights and interests of judgment executors. 2.2. Reality of implementing Vietnamese law on prosecution of imprisonment execution 2.2.1. Achievements - Using effectively methods of direct and indirect prosecution of imprisonment execution to detect violations committed by competent agencies, organizations and individuals in imprisonment execution. - Imlementing strictly and thoroughly the studying inmates' dossiers, dossiers and documents for exemption, postponement or temporary suspension of imprisonment execution and conditional parole. - The significantly increased quality of requests, petitions, protests, requests to prosecute, decisions to immediately release unfounded and unlawful imprisonment executors. 2.2.2. Limitations - Limitations on exercising the right to direct and indirect prosecute imprisonment execution to detect violations committed by competent agencies, organizations and individuals. - Limitations on poroposal for exemption, postponement, suspension of imprisonment execution, conditional parole. - Limitations on making requests, petitions, protests or decisions to release imprisonment sentence executors which are unfounded and unlawful. In addition, other limitations can be named are: The inadequacy of judicial cadres at all levels of Procuracies; invested facilities and working conditions 14 but have not yet met the requirements; salary for officials and Prosecutors are still subordinate. 2.2.3. The reasons of the limitations in prosecution of imprisonment execution Firstly, legal reasons - The imperfect provisions of Vietnamese law on prosecution of imprisonment execution like: The Procuracy's decision to suspend the imprisonment execution is still inappropriate; lack of regulations for the Procuracy to directly supervise the Court in criminal judgment execution; lack of regulations for the Procuracy to reduce terms and parole; lack of regulations for the Procuracy to protest according to appellate, cassation or reopening procedures against decisions on exemption or reduction of sentence execution terms or conditional parole; lack of regulations on duuration for the Court to explain and correct unclear points in judgments and decisions for execution to the Procuracy; the asynchronism on provisions of duties and powers of the People's Procuracies in the execution of criminal judgments in the Criminal Procedure Code, the Law on Criminal Enforcement and the Law on Organization of the People's Procuracies. - The inadequacies in a number of provisions of Vietnamese law related to prosecution of imprisonment execution that leads to unidentify the violations of competent agencies, organizations and individuals in prosecution of imprisonment execution. Second, other reassons - The low-guaranteed working conditions, facilities and salary for officials and Prosecutors; - The limited capacity of some officials and Prosecutors. - The low awareness and responsibility of some officials and Prosecutors assigned to prosecute imprisonment execution. - The limited management and direction of some local Procuracies which is not strictly complying with regulations of the Procuracy. Some officials and Prosecutors have not been responsibile at work. 15 - The limited coordination between the People's Procuracies at all levels and other competent agencies and organizations in imprisonment execution. Chapter 3 REQUIREMENTS AND SOLUTIONS TO IMPROVE THE QUALITY OF PROSECUTION OF IMPRISONMENT EXECUTION IN VIETNAM 3.1. Requirements to improve the quality of prosecution of imprisonment execution in Vietnam - Meet the requirements of the current judicial reform strategy in Vietnam. - Be suitable with the Constitution of the Socialist Republic of Vietnam and the promulgated legal documents. - Meet the current requirements of prosecution of imprisoment execution. - Meet the requirements of international integration trends. 3.2. Solutions to improve the quality of prosecution of imprisonment execution 3.2.1. Solutions on legal perfection Firstly, amending some provisions of the 2015 Criminal Procedure Code: - Amending Clause 2, Article 364 of the 2015 CPC to: "Article 364. Authority and procedure to issue judgment execution decisions 2. The time limit for issuing a judgment execution decision shall be 7 days upon the effect of the first-instance Court's decisions or judgments or upon the receipt of judgments from the appellate Court or decisions generated through cassation or reopening procedures; upon the receipt of decision to reduce the death penalty to the life imprisonment of the President. Within 7 days from the date of receipt of the first-instance Court's decision to delegate the judgment execution, the entrusted Judge must issue the judgment execution decision or notify the consigned Judge if the convicted person has moved to reside in another administrative area”. - Supplementing new Article the fifth section of the 2015 Criminal Procedure Code: 16 " Article Duties and powers of the Procuracy when prosecuting the issuance of judgment execution decisions, procedures for execution of death penalty, consideration of conditional parole and criminal record remission: When prosecuting the issuance of judgment execution decisions, procedures for execution of death penalty, consideration of conditional parole and criminal record remission, the Procuracy has the following duties and powers: 1. Requesting Courts at the same and subordinate levels to issue criminal judgment execution decisions or entrust other Courts at the same level to issue judgment execution decisions, to consider parole, to issue decisions of criminal record remission in accordance with law; request the Court to explain and correct the unclear points in the judgment or decision for execution. 2. Requesting courts, criminal judgment-executing agencies, agencies or organizations assigned a number of criminal judgment-executing tasks to self-inspect and notify the examination results to the Procuracy; Provide relevant records documents. 3. Periodically and irregularly prosecuting the law observance in conditional parole of the Courts, criminal judgment-executing agencies of the same and subordinate levels and agencies or organizations assigned a number of tasks in criminal execution; prosecuting conditional parole documents of criminal judgment-executing agencies of the same and subordinate levels, agencies and organizations assigned a number of tasks in criminal execution. 4. Deciding to appeal or not to appeal under cassation or reopening procedures against death penalty before execution. 5. Issuing written documents on the requests for conditional parole of the proposing agencies or the remission of criminal records of the convicts; requesting for release of conditional parole for those cases which are found eligible but not yet requested; participating in conditional perole meeting. 17 6. Issuing appeals, petitions and requests to the Courts, criminal judgment-executing agencies at the same and subordinate levels, agencies and organizations assigned a number of tasks in criminal execution, competent individuals involved in the consideration of conditional parole, criminal record remission; requesting the suspension of the execution, amendment or annulment of law-violation decisions, in consideration of the death penalty before execution, parole release and criminal records remission; stopping the law violations; protesting under appellate, cassation or reopening procedures against the Courts’ decisions on conditional parole. 7. Prosecuting the observance of law in settling complaints and denunciations regarding the review of death penalty before execution, the consideration of conditional parole release, criminal records remission; 8. Prosecuting or requesting Investigation agency to prosecute when detecting signs of crimes in considering the death penalty before execution, conditional parole release, criminal records remission according to law provisions. 9. Performing other duties and powers in prosecuting and executing criminal judgments". Secondly, perfecting some provisions of the 2019 Law on Execution of Criminal Judgments: "Article 23. Execution of decisions to execute imprisonment sentences 1. . In case a person sentenced to imprisonment is being detained at a detention center of the Ministry of Public Security, the detention center shall serve the judgment execution decision on such person, complete the dossier and report it to the criminal judgment execution management agency of the Ministry of Public Security within 08 working days. If the sentenced person is convicted of another criminal offense, the prison shall serve the new judgment execution decision on such person" - Amending Clauses 2, 4 and 5 of Article 167 of the 2019 Law on Execution of Criminal Judgments: 18 "Article 167. Tasks and powers of the Procuracy in prosecuting criminal judgment execution The Procuracy has the following tasks and powers in prosecuting criminal judgment execution s: 2. To directly prosecute the execution of criminal sentences by Courts, criminal judgment-executing agencies of the same and subordinate levels, agencies assigned a number of tasks in criminal execution; prosecute criminal judgment-executing dossiers of criminal judgment-executing agencies of the same and subordinate levels, agencies assigned a number of tasks in criminal execution. Provincial-level People's Procuracies and Military-Re