What is the defendant? What are the defendant’s rights? What is the defendant’s obligation? Regulations on defendants under the Criminal Procedure Code 2015?
A very important issue in criminal proceedings is the rights and obligations of the accused and defendants, because it is also one of the important bases for assessing the effectiveness of the proceedings. Sometimes, the accused is considered guilty even though there is no judgment of the Court, so their rights and obligations are violated a lot. So what is the legal regime of the accused in criminal proceedings?
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1. What is the defendant?
Rights and obligations of the accused and defendants in criminal proceedings are a very important issue that directly affects the proceedings. Previously, the accused and defendants were automatically considered guilty, so their rights were greatly narrowed. Overcoming the shortcomings of
The term “defendant” has been used in many decrees on the organization of judicial bodies signed by the President of the Democratic Republic of Vietnam since 1945. However, it was only in 1974 in the Guidelines on submissions. The first-instance self-procedure in criminal proceedings (attached to Circular No. 16/TATC dated September 27, 1974 of the Supreme People’s Court) provides a new legal definition of the concept of defendant: “A defendant is the person being prosecuted. criminal liability before the people’s court”.
According to the provisions of the Criminal Procedure Code 2015, specifically in Clause 1, Article 61, the defendant is a person or legal entity that has been decided to bring to trial by the Court. Rights and obligations of the defendant as a legal person are exercised through the
2. QDefendant’s powers:
According to the provisions of Clause 2, Article 61 of the 2015 Criminal Procedure Code, the defendant has the following rights:
a) Receive the decision to bring the case to trial; decide to apply, change or cancel preventive and coercive measures; decide to terminate the case; judgments, decisions of the Court and other procedural decisions in accordance with the provisions of this Code;
b) Participating in court sessions;
c) To be informed and explained about the rights and obligations specified in this Article;
d) Request for assessment and valuation of assets; requesting the change of persons competent to conduct legal proceedings, experts, property appraisers, interpreters, translators; to request the summoning of witnesses, victims, persons with interests and obligations related to the case, experts, property appraisers, other procedure participants and persons competent to conduct legal proceedings. attend the trial;
see more: The latest regulations on arresting suspects and defendants for temporary detention in 2022
d) Presenting evidences, documents, objects and requests;
e) Presenting opinions on relevant evidences, documents and objects and requesting competent procedure-conducting persons to examine and evaluate them;
g) Defend themselves, ask a defense counsel;
h) Present testimony, present opinions, not be forced to testify against oneself or forced to admit guilt;
i) Request the presiding judge of the court session to ask questions or ask the court participants himself if the presiding judge agrees; argue in court;
k) Saying the last word before deliberation;
l) View the minutes of the court sessions, request amendments and supplements to the minutes of the court sessions;
m) Appeal against court judgments or decisions;
see more: Jurisdiction of the Court under the Criminal Procedure Code
n) Complaints about procedural decisions and acts of procedure-conducting agencies or persons;
o) Other rights as prescribed by law.”
It can be seen that, compared with the provisions of Article 50 of the 2003 Criminal Procedure Code, the defendant has a number of new rights as follows:
Firstly, the right to “present opinions on relevant evidences, documents and objects and request competent persons to conduct legal proceedings for examination and evaluation”. Often, these evidences, documents and objects are meant to absolve the accused, prove that the defendant did not commit the crime or prove the mitigating circumstances for the accused. Therefore, when the Trial Panel receives the evidences, documents and objects provided by the accused, it must conduct an objective examination and assessment to determine whether such evidences, documents and objects are not valid. Is it evidence in the case? and its value in determining the truth of the case.
Second, the right to “suggest the presiding judge of the court session to ask questions or to ask the court participants himself if so agreed by the presiding judge; argument in court”. Asking the presiding judge to question or ask the court participants himself will increase the defendant’s initiative, help the defendant better exercise his or her defense rights, and ask questions as well as confront him directly at the court. The trial will be an important basis for making the trial objective, comprehensive and complete.
Third, the right to “see the minutes of the court sessions, request that amendments and supplements be recorded in the court minutes”. In order to avoid errors in the recording of events at the trial, the defendant has the right to view the court minutes and request amendments and supplements to the minutes, which means that the defendant agrees to the proceedings. adjudication if there are no other requirements for additions or changes.
Fourth, the defendant also has “other rights as prescribed by law”. These rights will be made clear after the guidelines come into effect.
3. Obligations of the accused:
Along with rights, the accused also has certain obligations, based on Clause 3, Article 61 of the CPC, the defendant has the following obligations:
see more: Who has the authority to order the arrest of the accused or defendants for temporary detention?
First, be present under the summons of the Court. In case of absence due to force majeure or objective obstacles, they may be escorted; if they flee, they will be wanted;
“Article 290. Presence of defendants at court hearings
1. The defendant must be present at the court hearing under the court’s summons throughout the duration of the trial of the case; if he is absent due to force majeure or objective obstacles, he will be escorted; if the defendant is absent due to force majeure or objective obstacles, the court hearing must be postponed.
If the defendant suffers from a mental illness or suffers from a serious illness, the Trial Panel shall temporarily suspend the case until the defendant recovers from his illness.
If the defendant escapes, the Trial Panel shall temporarily suspend the case and request the investigating agency to pursue the defendant.
2. The court can only adjudicate in the absence of the accused in the following cases:
a) The defendant fled and the pursuit was fruitless;
b) The defendant is overseas and cannot be summoned to the court hearing;
see more: Time limit for detention according to Article 173 of the Criminal Procedure Code 2015
c) The defendant requests trial in his/her absence and is accepted by the Trial Panel;
d) If the defendant’s absence is not due to force majeure or is not due to an objective obstacle and the defendant’s absence does not interfere with the trial.”
(i) This is the defendant’s obligation:
Presence at the court hearing is the right and obligation of the accused because they are the ones who are being examined for penal liability and have the right to defend themselves before the court. The defendant’s presence at the court session is mandatory, in order to implement the principle of direct trial; secure negotiations for the Court to determine the objective truth and create favorable conditions for the accused to exercise his/her right to defend at the court hearing in accordance with law.
The defendant must be present at the court hearing according to the court’s summons. Defendants who are being held in temporary detention must be escorted by the police or military police to the trial according to the court’s summons and trial plan.
The bail defendant must be present at the court hearing under the court’s summons; If they are absent without a valid reason, they will be escorted. For the escorted defendant, the break time, deliberation time, etc. must be under the supervision of the police or guard; if the trial lasts for many days, the Trial Panel may decide to temporarily detain the accused to ensure the trial.
(ii) In case of adjournment of the court hearing:
In case the defendant is absent for a legitimate reason such as because he did not receive a summons from the Court, due to illness or natural disaster, he cannot attend the court hearing, the trial must be postponed.
see more: Evidence and proof in the Criminal Procedure Code 2015
(iii) The court shall decide to suspend the case in the following cases:
– If the defendant suffers from a mental illness or suffers from other serious diseases such as cancer, tuberculosis, stroke, etc., the Trial Panel shall issue a decision to temporarily suspend the case until the defendant recovers from his illness. The confirmation of the defendant’s mental illness or other fatal disease as well as the conclusion that the defendant has recovered from the disease or not shall be concluded in writing by the Forensic Examination Council.
If the defendant evades, the Trial Panel shall temporarily suspend the case and request the investigating agency to pursue the defendant.
(iv) Court of trial in absentia
The law stipulates that the Court can only adjudicate in the absence of the accused in the following cases:
The defendant evaded and the pursuit was fruitless. If the defendant cannot be arrested within 1 month from the date of the arrest warrant, the court shall resume the proceedings and hold the trial in the defendant’s absence;
The defendant is abroad and cannot be summoned to the trial. Not every case where the defendant is abroad can be heard in absentia. In order for the Court to be able to trial in the defendant’s absence, in addition to the condition that the defendant is in a foreign country, one more sufficient condition must be added that the Court cannot summon the defendant to the trial. Normally, the Court cannot summon the defendant to the trial in cases where the defendant is in a country with which Vietnam has not had a mutual legal assistance agreement, the defendant is abroad in order to evade legal punishment. Vietnam, the defendant’s overseas address is unknown…;
– If the defendant’s absence does not impede the trial and they have been given a valid summons. Usually, the Court adjudicates the defendant in the absence of the accused in cases of simple, clear, and less serious crimes, the sanctions prescribed for such crimes are less severe, the defendants are released on bail and plead guilty. These are cases where the defendant requests a trial in the defendant’s absence.
see more: Distinguish between the accused and the accused
Second, to comply with the Court’s decisions and requests.
When the Court’s judgment is pronounced and effective, the defendant must comply with that content, and this can be considered as being accused of being forced to perform.
The Criminal Procedure Code 2015 stipulates in the direction of expanding the rights of the accused and defendants in criminal proceedings, which greatly affects the investigation, prosecution and trial; contribute to improving the responsibilities of the procedure-conducting agencies as well as the competent procedure-conducting persons in the investigation, prosecution and trial stages. The extension of rights to the accused and defendants should not be considered as weakening the fight against crime.
Investigators need to use all skills to collect incriminating and exculpatory evidence, aggravating or mitigating circumstances of the accused; Procurators need to actively and closely supervise right from the time of prosecution and investigation until the prosecution and trial; Courts need to properly perform their functions and tasks to ensure fairness, correctness and accuracy in the adjudication process. All activities of procedure-conducting agencies and persons must be carried out objectively, fairly, in accordance with the order and procedures prescribed by law, ensuring the prosecution, investigation and prosecution. , adjudicating the accused and defendants to the right person, the right crime and the law, not letting the crime slip through, not wronging the innocent, respecting and ensuring human rights and the rights of the accused and defendants to the law prescribed criminal proceedings.
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