COLLECTION OF EVIDENCE IN VIETNAMESE CRIMINAL PROCEEDINGS

© IJARW | ISSN (O) - 2582-1008 September 2023 | Vol. 5 Issue. 3 www.ijarw.com COLLECTION OF EVIDENCE IN VIETNAMESE CRIMINAL PROCEEDINGS MSc. Le Thi Diep PhD Student of Academy of Social Sciences Lecturer at Dai Nam University ABSTRACT In criminal proceedings, evidence and the right to collect evidence are always among the most important provisions. In Vietnam, these regulations have been further refined in the 2015 Vietnam Criminal Procedure Code to ensure the principles of Vietnamese criminal proceedings. However, the practice of exercising the right to collect evidence still reveals limitations and obstacles that need to be perfected by legal regulations. Within the scope of this article, we study and present some issues on evidence collection and make recommendations for improving regulations on evidence collection in Vietnamese criminal proceedings. Keyword: Evidence; Collection of evidence in Vietnamese criminal proceedings 1. INTRODUCTION In a criminal case, evidence collection is the first stage of the proof process, so without evidence collection, there would be no inspection, evaluation, and use of evidence for proof. The 2015 Vietnam Criminal Procedure Code stipulates that the right to collect evidence not only belongs to the agency or person with jurisdiction to conduct proceedings (the prosecution), but also to the defense counsel (the defense). This is an important issue that contributes to ensuring that criminal cases are investigated, prosecuted, and tried correctly in terms of the person, the crime, and the law, aiming to ensure fairness in criminal proceedings between the prosecution and the defense. 2. THE RIGHT TO COLLECT EVIDENCE IN VIETNAMESE CRIMINAL PROCEEDINGS The right to collect evidence in Vietnamese criminal proceedings is based on the principles of criminal proceedings such as: the principle of ensuring the socialist legal system (Article 7 of the Criminal Procedure Code); the principle of respecting and protecting human rights (Article 8 of the Criminal Procedure Code); the principle of determining the truth of the case (Article 15 of the Criminal Procedure Code), and the principle of ensuring the right to defense for the accused (Article 16 of the Criminal Procedure Code). In countries following an adversarial model, the concept of the right to collect evidence for the prosecution and defense emerged in the 16th and IJARW1960 17th centuries, along with the emergence and formation of an adversarial system. In an adversarial system, all procedural activities aim to seek objective truth through a trial where defense attorneys for the accused and prosecutors argue with each other equally, while judges ensure fairness and legal compliance for both parties. The feature of adversarial proceedings is that it values evidence over confession, and truth is revealed through free and open debate between prosecution and defense, with accurate facts about the case. The trial procedure is conducted publicly, orally, and strictly adheres to adversarial principles. All written evidence such as police records are not recognized as evidence. The prosecution and defense participate in court as two opponents responsible for proving the guilt or innocence of the defendant. Each party is equal to each other in using law, especially procedural rules and their procedural powers to gain an advantage over the other party. Therefore, the role of defense - defense counsel, especially defense attorneys in an adversarial system is highly valued. Thus, it can be seen that starting from the adversarial model and only in the adversarial model does the concept of defense rights appear, and only when the accused is guaranteed the right to defense does the adversarial model promote its role and significance. To ensure and specify the defense rights of the accused, it is necessary to ensure some other rights related to defense activities, in which the first prerequisite right International Journal of All Research Writings 9 © IJARW | ISSN (O) - 2582-1008 September 2023 | Vol. 5 Issue. 3 www.ijarw.com mentioned is the right to collect evidence of the prosecution in general and of the defense counsel in particular. The reason for this is that: to defend well, to perform well the function of defense, the defense counsel must have arguments based on evidence, documents related to defense to defend in the direction of acquitting the accused, not just based on evidence, documents of prosecution or only based on evidence, documents of acquittal collected by the prosecution to defend for the accused. The equal and fair debate at trial is only truly guaranteed when in previous stages both prosecution and defense (defense counsel) are allowed to collect and evaluate evidence equally and fairly. Therefore, if in the past the right to collect evidence only belonged to the agency with jurisdiction to conduct proceedings - the prosecution, then for the first time, the 2015 Vietnam Criminal Procedure Code recognizes that defense counsel has the right to collect evidence. This is a new breakthrough regulation aimed at equality between parties in Vietnamese criminal proceedings. 3. REGULATIONS OF VIETNAMESE LAW ON EVIDENCE COLLECTION IN CRIMINAL PROCEEDINGS The Vietnamese Criminal Procedure Code 2015 has specific and detailed regulations on subjects with the right to collect evidence. Accordingly, the right to collect evidence belongs to the agency with jurisdiction to conduct proceedings and defense counsel. ● Right of agency with jurisdiction to conduct proceedings to collect evidence According to Point a, Clause 1, Article 4 of Vietnamese Criminal Procedure Code 2015: “Agency with jurisdiction to conduct proceedings includes agency conducting proceedings and agency assigned task of conducting some investigation activities”. According to Clause 1, Article 34 of Vietnamese Criminal Procedure Code 2015: “Agency conducting proceedings includes: a) Investigation agency; b) Procuracy; c) Court” For Procuracy, according to clause 3 of Article 236 of Vietnamese Criminal Procedure Code 2015 then Procuracy has duties, powers: “Directly carry out some investigation activities in order to check, supplement documents, evidence to decide prosecution or when Court requests additional investigation but finds it unnecessary to return dossier to Investigation agency”. IJARW1960 For Court, according to Article 252 of Vietnamese Criminal Procedure Code 2015: “Court conducts verification, collection, supplementation of evidence by activities: 1. Receiving evidence, documents, objects related to cases provided by agencies, organizations, individuals; 2. Requesting agencies, organizations, individuals provide documents, objects related to case; 3. Examining in place objects that cannot be brought to court; 4. Examining at a place where crime occurred or other places related to case; 5. Requesting expert opinion, requesting asset valuation outside cases where expert opinion must be requested, asset valuation is required as prescribed in Article 206 and Article 215 of this Code; requesting additional expert opinion, re-expertise; requesting revaluation of assets; 6. In case the Court has requested Procuracy supplement evidence but Procuracy cannot supplement then Court can verify, collect documents, evidence to resolve the case”. Thus, Procuracy and Court only conduct evidence collection if they find that evidence collection by the Investigation agency is not sufficient and Procuracy finds it necessary to supplement evidence for prosecution or Court finds it necessary to supplement evidence for trial. As for the Investigation agency, it can be said that this subject mainly conducts activity of collecting evidence and in any criminal case cannot lack activity of collecting evidence from this agency. ● Right to collect evidence of defense counsel Clause 1, Article 73 of the Vietnamese Criminal Procedure Code 2015 stipulates the rights of defense counsel: “1. Defense counsel has the right to: a) Meet, question the accused; b) Be present when taking statements from the arrested person, the detainee, when questioning the suspect and if the person with jurisdiction to take statements, questioning agrees then allowed to question the arrested person, the detainee, the suspect. After each statement taking, questioning by the person with jurisdiction ends, defense counsel can question the arrested person, detainee, suspect; … h) Collect, present evidence, documents, objects, requests; International Journal of All Research Writings 10 © IJARW | ISSN (O) - 2582-1008 September 2023 | Vol. 5 Issue. 3 www.ijarw.com i) Check, evaluate and present opinions on evidence, documents, objects related and request persons with jurisdiction to conduct proceedings to check, evaluate;”. specified in Clause 2 and Clause 3 of this Article; agency with jurisdiction to conduct proceedings must make receipt records and check and evaluate according to regulations of this Code”. These are contents to specify the right of defense counsel to collect evidence. Accordingly, in order to collect evidence, defense counsel have the right to meet, question the accused; the right to be present when taking statements from an arrested person, detainee, when questioning a suspect and if person with jurisdiction to take statements, questioning agrees then allowed to question arrested person, detainee, suspect. These regulations are considered as regulations on the right of defense counsel to collect evidence through questioning the person they defend. With this regulation; evidence; documents; objects; electronic data related to cases collected by defense counsel will have to be handed over for persons with jurisdiction to conduct proceedings for checking and evaluating. In other words; evidence; documents; objects are only considered as evidence when handed over for agency with jurisdiction and depend on checking; evaluating the agency with jurisdiction conducting proceedings. If the agency conducting proceedings checks; evaluates recognizing it as evidence, then it is considered as evidence and used. This regulation has a difference between evidence collected by defense counsel and evidence collected by agencies with jurisdiction conducting proceedings. Article 81 of Vietnamese Criminal Procedure Code 2015 stipulates on collection and delivery of evidence, documents, objects related to defense: “1. Defense counsel collects evidence, documents, objects, circumstances related to defense as prescribed in Clause 2 of Article 88 of this Code; 2. To collect evidence, defense counsel has right to meet people they defend (including: arrested person, detainee, suspect), victim, witness and others who know about case to ask and listen them present about issues related to case; request agencies, organizations and individuals provide documents, objects and electronic data related to defense”. According to these regulations, meeting and questioning people they defend (including: arrested person, detainee, suspect) is the right of defense counsel in order to collect evidence. In other words, meeting people they defend is for collecting evidence from people they defend through questioning and listening to them present about issues related to the case is determined as a right of defense counsel. This is a new regulation in Vietnamese Criminal Procedure Code 2015; this regulation can be considered as breakthrough regulation starting towards balance and equality between accusing party and party removing crime in criminal proceedings and that is the “key” opening truth of the case. Clause 4 Article 88 Vietnamese Procedure Code 2015 stipulates: Criminal “When receiving evidence, documents, objects and electronic data related to cases provided by persons IJARW1960 Clause 3 Article 81 Vietnamese Procedure Code 2015 stipulates. Criminal “In case it is impossible to collect evidence; documents; objects related to defense then defense counsel may request agency with jurisdiction conducting proceedings to collect.” In addition to the provision for the defense counsel to directly collect evidence, to ensure the right of the defense counsel to collect evidence, in cases where the defense counsel cannot collect evidence, documents, and objects related to the defense, the defense counsel can request the competent agency to collect evidence. 4. LIMITATIONS AND INADEQUACIES IN REGULATIONS OF VIETNAMESE CRIMINAL PROCEDURE LAW ON RIGHT TO COLLECT EVIDENCE AND DIRECTION FOR IMPROVEMENT Firstly, as presented above, in current Vietnamese criminal proceedings, there are 2 groups of subjects with right to collect evidence, namely: Agency with jurisdiction to conduct proceedings and defense counsel. The common point of these 2 groups of subjects about the purpose of collecting evidence is that they all have the purpose and duty to collect evidence in order to determine the objective truth of the case, which is also the principle of ensuring socialist legality in the rule-of-law state. However, besides this common purpose, with their function, duty and International Journal of All Research Writings 11 © IJARW | ISSN (O) - 2582-1008 September 2023 | Vol. 5 Issue. 3 www.ijarw.com “mission”, the main purpose of 2 groups of subjects when performing evidence collection is completely different, even opposite each other. We can temporarily call one group representing the accusing party as agencies with jurisdiction to conduct proceedings and one group representing the party removing crime as defense counsel. According to regulation in Article 15 of Vietnamese Criminal Procedure Code 2015: “Responsibility for proving crime belongs to the agency with jurisdiction to conduct proceedings. Accused person has the right but not the obligation to prove his innocence”. With this regulation, naturally agencies with jurisdiction to conduct proceedings when initiating prosecution, investigation, prosecution and trial will tend towards the purpose of verifying, collecting, analyzing, evaluating evidence towards accusing because agencies with jurisdiction conducting proceedings want to accuse then must prove with accusing evidence. Thus, the main purpose of collecting evidence of agencies with jurisdiction conducting proceedings is mainly to collect evidence for accusation. On the contrary, although regulations of Vietnamese Criminal Procedure Code do not specifically stipulate responsibility of defense counsel but only recognize defense counsel as a person who the accused person asks for defense or agency with jurisdiction conducting proceedings appoints and agency or person with jurisdiction conducting proceedings accepts registration for defense. However, the term “defense” itself speaks up the responsibility of defense as well as the main purpose of defense counsel in performing their evidence collection activity. Specifically: Defense is using arguments and evidence to advocate for a party in a criminal or civil case before court, or for an act being condemned; Defense is using arguments and evidence to protect legal rights and interests for suspect, accused. Thus, with its “mission”, the primary purpose of the defense counsel when defending the accused is to protect and advocate for the accused, or in other words, to acquit the accused. With this purpose, it is natural that the defense counsel will focus on collecting, exploiting, and evaluating evidence in order to acquit the accused. In summary, the purpose of evidence collection by the two groups of subjects is in two opposing IJARW1960 directions. The group of agencies with jurisdiction to conduct proceedings collects evidence in order to prosecute, to prove the guilt of the accused, while the group of subjects who are defense counsel collect evidence in order to acquit, to prove that the accused is innocent or less guilty… The issue arises, as analyzed above, between the group of subjects who are agencies with jurisdiction to conduct proceedings and the group of subjects who are defense counsel, their purpose of collecting evidence is in two different directions, completely opposing each other. However, the right to collect evidence between these two groups of subjects currently has certain shortcomings as follows: - Regarding the provision related to the right to meet the accused and the right to be present when taking statements from the arrested person, the detainee, and the accused to collect evidence: Meeting the person being defended is an activity of collecting evidence through questioning the person being defended, so this meeting will be of no value if the defense counsel is not allowed to question the arrested, detained, and accused persons. However, with the provision at point b of Clause 1 of Article 73 of the 2015 Vietnam Criminal Procedure Code, the right of defense counsel to question arrested, detained, and accused persons is only granted if agreed upon by the competent person conducting the interrogation. This is an unreasonable regulation for the following reasons: Firstly, a right should not depend on someone else’s agreement. According to the Vietnamese dictionary, “right” is understood as: (1) something that law and society recognize, allow to enjoy, do, demand… (2) things due to position or duty that are allowed to do. Currently, according to provisions in Article 73 and Article 88 of Vietnamese Criminal Procedure Code 2015, the right of defense counsel to collect evidence including meeting the person they defend in order to question and listen to them present about issues related to the case depends on agreement of person with jurisdiction taking statements and questioning. This regulation is unreasonable and does not ensure fairness for the party removing crime and accused persons. Secondly, with the current regulation, if the person with jurisdiction to conduct proceedings International Journal of All Research Writings 12 © IJARW | ISSN (O) - 2582-1008 September 2023 | Vol. 5 Issue. 3 www.ijarw.com does not agree when taking statements, then of course the defense counsel is not allowed to question the arrested person, detainee, or suspect. Thus, the right of defense counsel to collect evidence by questioning the arrested person, detainee, suspect cannot be implemented or in other words, the right of defense counsel to collect evidence in this case is considered to be deprived. - Regarding the provision that in case defense counsel cannot collect evidence related to defense, they have the right to request agency with jurisdiction to conduct proceedings to collect (Clause 3, Article 81 of Vietnamese Criminal Procedure Code 2015). This is one of the progressive provisions of Vietnamese Criminal Procedure Code 2015, however, some opinions believe that if it stops at current regulation, it can hardly be guaranteed because it depends a lot on subjective will from agencies with jurisdiction conducting proceedings whose purpose of collecting evidence is completely different from purpose of collecting evidence of defense counsel. Moreover, from practical activities of defense counsel shows that with this regulation implicitly is reason for agencies, organizations and individuals holding documents and evidence related to criminal case and related to defense for accused person refuse to provide for defense counsel because they may think that providing documents and evidence should only be provided for agency with jurisdiction conducting proceedings and not provided for defense counsel. We believe that criminal procedural law needs more specific regulations so that agencies, organizations or individuals must realize that providing documents and evidence for agencies conducting proceedings and providing evidence for defense counsel are equally meaningful and responsible. - Regarding provision on checking and evaluating evidence, documents, objects and electronic data related to case collected by defense counsel: Although Vietnamese criminal procedural law stipulates that defense counsel is one of subjects with right to collect evidence, however with provision at Clause 4 Article 88 Vietnamese Criminal Procedure Code 2015, according to which when collecting evidence defense counsel must submit to agency with jurisdiction conducting proceedings for them to consider and evaluate whether it is evidence or not. Thus, the decision whether to use this evidence or not IJARW1960 depends entirely on the agency or person with jurisdiction conducting proceedings. This regulation is both unreasonable and lacks objectivity and fairness because: If defense counsel collects important evidence deciding whether suspect or accused is guilty or not then usually defense counsel will not submit it to investigation agency and procuracy but only wait until court session is opened even in many cases until argument part defense counsel presents important evidence to ensure these evidences are not invalidated or distorted… Presenting evidence at this time may cause difficulties in the process of considering and evaluating evidence in court but usually defense counsels will choose this option because it will be very difficult for a party removing crime can submit important evidences for accusing party when purpose of collecting evidence of two parties can be said to be opposite each other. Thus, according to the above regulations, it is clear that defense counsel is very passive in collecting documents, objects, and electronic data related to the case. Because the request of defense counsel to agencies, organizations, and individuals depends a lot on their subjective will, the professional skills of defense counsel for them to provide documents, objects, and electronic data for defense counsel. Moreover, the Vietnamese Criminal Procedure Code stipulates that the receipt of documents, evidence, objects, electronic data will be carried out by the agency with jurisdiction to conduct proceedings, does not directly stipulate the receipt between defense counsel and agencies, organizations, individuals. Therefore, it is clear that defense counsel will be very passive in receiving documents, evidence, objects, electronic data if defense counsel is provided with documents, evidence, objects because the Vietnamese Criminal Procedure Code does not stipulate about receipt between defense counsel and agencies, organizations, individuals. Unlike the right to collect evidence of defense counsel, the right to collect evidence of agencies and persons with jurisdiction to conduct proceedings is clearly stipulated by the Vietnamese Criminal Procedure Code regarding their responsibilities. Article 168 of the Vietnamese Criminal Procedure Code 2015 stipulates: Agencies, organizations and individuals must strictly implement decisions and requests of investigation agencies and procuracy during International Journal of All Research Writings 13 © IJARW | ISSN (O) - 2582-1008 September 2023 | Vol. 5 Issue. 3 www.ijarw.com criminal case investigation; in case of noncompliance without force majeure or objective obstacles shall be handled according to legal regulations. But for the right to collect evidence of defense counsel as well as responsibility to ensure the right to collect evidence of defense counsel from agencies, organizations and individuals according to regulations of Vietnamese Criminal Procedure Code is still a gap. Therefore, we believe that regulations of Vietnamese Criminal Procedure Code on ensuring right to collect evidence of defense counsel from agencies, organizations and individuals are still limited and need to be studied for amendment and supplementation to improve ensuring better defense rights of accused person recognized by Constitution and specified in Vietnamese Criminal Procedure Code as well as ensuring right to collect evidence of defense counsel in criminal proceedings. 5. CONCLUSION To move towards a transparent and fair judiciary that ensures human rights, it is necessary first and foremost to ensure equality between parties in criminal proceedings. The process of proving in criminal proceedings is a process in which the first stage is collecting evidence. If you want the proving activity to be objective and equal to ensure the objectivity and principle of determining the truth of a case, then you must ensure fairness from the first stage. Accordingly, evidence collection activities and rights to collect evidence of all parties must be fair. From the above analysis it can be seen that some provisions of Vietnamese Criminal Procedure Code 2015 related to the right of defense counsel to collect evidence need to be studied for amendment and supplementation towards ensuring equal balance in right to collect evidence between accusing party and party removing crime. procedure model in Vietnam", People's Court Journal, No. 23, p.38. [4]. Nguyen Tat Trinh (2017), Some difficulties and problems regarding the regulation of defense counsel according to the provisions of the Criminal Procedure Code 2015, https://cdn.tapchitoaan.vn/mot-so-kho-khanvuongmac-ve-che-dinh-people-coveraccording-to-regulation-cua-bltths-nam-2015. [5]. Pham Minh Tuyen (2017) “Collecting, examining, evaluating and principles of using evidence in criminal proceedings”, Journal of Procuracy, No. 21. [6]. 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