Tiến Sĩ Guarantee of the accused person’s right to defense counsel -a comparative of vietnamese, german and

Đề tài: GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO DEFENSE COUNSEL -A COMPARATIVE OF VIETNAMESE, GERMAN AND AMERICAN LAWS

INTRODUCTION
1. Background
The tasks of guaranteeing human rightsand improving the
laws of criminal procedure have been currently attracting much
attention of many nations. However, one of the difficulties that
such nations face inimprovement of the laws is theassurance
ofthe balance between objectives of criminal procedure laws
that isthe balance between the task of handling crimes and
maintaining the strictness of laws and the guarantee and non-violation of the procedural rights of the accused. Practically, in
a few nations, the procedural rights of the accused, including
the right to defense counsel, are not fully guaranteed, and are
even violated.
In Vietnam, practical settlement of criminal cases tends to
indicate that incorrectjudgmentsstill exist that naturally
prejudicesthe legitimate rights and interests of citizens,
including the right to have defense counsel in criminal cases.
This results from variouscauses, of which the overlapping and
contradictory nature of the lawsis one. Even though the
Vietnamese Criminal Procedure Code has undergone several
amendments and supplements, it has only partly overcome its
existing shortcomings. As such, the legal rights and interests of
the accused have not been fully guaranteed and are even
violated. Under these circumstances, the State has taken
initiatives showing its decisiveness to speedilyimprovethe
legal system in general andthe Criminal Procedure Code in
particular. Like many other nations around the world, Vietnam
has been carrying out a comprehensive reform of criminal
justice. Resolution No. 08/NQ/TW dated 2 January 2002 and
Resolution No. 49/NQ/TW dated 2 June 2005 of the Politburo
prescribe one of key tasks of judicial reform is to expand the
proceedings at criminal trials, in which the need for further
expansion of the rights of defense counsel and the accused is
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emphasized. This is a firm basis to improve the fairness of the
legislation in general and the guarantee of the accused’s right to
defense counsel in particular.
However, in order to obtain the effectiveness of judicial
reform in criminal procedure, the expansion of international
cooperation in the fight against crimes in general andcriminal
procedure activities in particular is an objective necessity in
line with thegeneraltrend towards legal harmonization.
Wishing to contribute to the enhancement of the effectiveness
of improving the law regarding the right to defense counsel, the
author chose to undertake the research at PhD level on the
theme: “Guarantee of the accused person’s right to defense
counsel -A comparative study of Vietnamese, German and
American Criminal Procedure Laws”.In the author’s opinion,
the research should be based on the following theoretical and
practical foundations:
First, like Germany, the US and many other nations in the
world, Vietnam pays considerable attention to the setting up
and improving of legal instruments in the field of criminal
procedure which relate to the guarantee of the procedural rights
of the accused, of which the guarantee of the right to defense
counsel is one of the most important. As a result, studying and
comparing the legal mechanisms guaranteeing the right to
defense counsel in these three nations will be necessary for
establishing its foundations.
Secondly,Vietnamese, German and US criminal procedure
law have all recognized that the right to defense counsel is a
fundamental procedural right of the accused that needs to be
fully guaranteed. Despite key successes in legislative aspect,
there are a number of shortcomings in the regulations that need
to be analyzed, clarified and improved. As to Vietnam,
difficulties and problems regarding both the awareness and the
practical application of these regulations have not been
resolved. My theme may lead me to explore the contents of a
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number of laws that need to be improved.
Thirdly, the practical application of Vietnamese criminal
procedure laws is poorer than the statutory regulations would
anticipate. The knowledge and professional conduct of persons
conducting proceedings and of counsel still contain
shortcomings and mismatches. This may affect or even damage
the rights and interests of accused persons involved in
proceedings. As such, it is advisable to study measures to
remedy such circumstances.
Fourthly, researching and comparing the criminal
procedure laws of Vietnam and those of certain nations other
regarding the guarantee of the right to defense counsel is a
sound requirement in line with the general trend towards legal
harmonization. This will give Vietnam opportunities to study
and learn from experience, in a selective manner, when making,
amending, supplementing and applying criminal procedure
laws on the guarantee of the right to defense counsel. On such a
basis, Vietnam can improve the statutory regulations on the
right to counsel, and enhance the effectiveness of the
investigation, prosecution and judgment of criminal cases.
2. Purposes and duties of the research
This dissertation has two aims. The first is to study the
laws of Vietnam, Germany and the US regarding theguarantee
of the accused’s right to defense counsel. To serve this purpose,
the dissertation focuses on clarifying scientific perspectives,
provisions of the applicable criminal procedurelawsand
materials reflecting the practical context of the guarantee of the
right to defense counsel in the selected countries, Vietnam,
Germany and the United States. The foregoing researches have
been conducted to answer the question of how the accused’s
right to defense counsel is guaranteed in criminal procedure in
Vietnam, Germany and the United States.
The second aim of this dissertation isto proposesuitable
andpracticable solutions to improve the applicablecriminal
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procedure laws of Vietnam in terms of the guarantee of the
right to defense counsel and then tocontribute to the
improvement of the effectiveness of handling criminal cases to
the satisfaction of the duty of handling crimes while still
guaranteeinghuman rightsin criminal procedure.
In line with these two aims, this dissertation will solve the
following duties:
First,giving a comparison between the scientific and
historical views of the guarantee of the right to defense counsel
and clarifying the common theoretical bases concerning the
guarantee of this right in criminal procedure.
Secondly, clarifying the contents ofthe applicable
provisions of international lawandthe laws of Vietnam,
Germany and the United States on guaranteeing the right to
defense counsel. This will be affected by the comparative
methodwith a view to find out similarities and differences, and
then explain such similarities and differences. Concurrently,
analyzing and pointing out the advantages and limitations of the
applicable criminal procedure laws on guaranteeing the right to
defense counsel.
Thirdly, learningabout andgiving assessments on the
actual statusof the guaranteeof the right to defense counsel in
Vietnam, Germany and the United States, again by the
comparative method,for the purpose of acknowledging the
strengths and weaknesses of applying laws in each nation.
Finally, on the basis of studying theoretical foundations
and applicable laws as well as the practical application of the
laws of Germany and the United States on the guarantee of the
right to defense counsel, the dissertation proposes a number of
recommendations for improving the applicable laws of Vietnam
for the purpose of improving the effectiveness of the guarantee
of this right in criminal procedure.
3. Delimitation
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The present research project lies in the field of criminal
procedure law and uses a comparative approach. However, it
explores questions concerning the right to defense counsel from
a legal perspective rather than other aspects such as economic
or social management mechanism, etc. Therefore, subjects to be
researches hereinwill be scientific standpoints and provisions
of the applicable criminal procedure laws of Vietnam, Germany
and the United States which regulate the right to defense
counsel as well as the practical materialsof competent
authorities and courts’ judgments. In addition, international
legal instruments directly related to the research topic will also
be analyzed to clarify the conformity of these national laws to
international standards.
4. Status of study
The right to defense counsel of the accused has beenearly
recognized in the history of international criminal procedure
laws as well as of Vietnamese criminal procedure laws. Under
the Vietnamese laws, the right to defense counsel has been
recognized in the Constitution and the Criminal Procedure
Code as afundamental principle orienting procedural activities
of competent authorities. Nevertheless, the guarantee of this
right in practice still has many limitations, not only in Vietnam
but also in many other nations in the world. In practice,
researches to find out solutions to further guarantee rights and
interests of the accused in criminal procedure have been
conducted by many scientists. However, most researches have
mentioned the guarantee of the accused’s fundamental rights
only. Direct researches on the guarantee of the right to defense
counsel are still in few crumbs, especially, no research has been
conducted by way of a comparative approach.
In Vietnam, researches relating to the guarantee of the right
to defense counsel are still very limited. Most researches have
been conducted under the form of academic articles or papers at
Seminars and they are narrowed at the level of interpreting
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legal positivism. Generally, contents mentioned in such articles
have focused on three aspects: first, researcheson provisions of
the Criminal Procedure Code in terms of guaranteeing human
rights (including the accused’s rights); secondly, researches on
criminal procedure principle of guaranteeing the right to defend
of the accused in general; thirdly, researches onthe role of
defense counsel in criminal procedure. In addition, few
academic articles mention the guarantee of the right to defence
in general in the context of judicial reform. A number of
researches in the form of books and dissertations (at LL.M and
Ph.D level) have become out-of-fashionable without
documentary nature. In a larger range, some groups of experts
have carried out researches on the actual activities of lawyers in
criminal procedure; however, such researches have been halted
at the level of surveyed statistics.
Nevertheless, results of the aforesaid researches have
helped clarify provisions of criminal procedure laws on
guaranteeing the right to defend in general and point out the
existing weaknesses in a relative manner. However, such
researches have not been conducted by a direct and
comprehensive approach to the guarantee of the right to defense
counsel; especially they have hardly mentioned the guarantee
of this right in an international perspective.
In foreign scientific research forums, a few articles and
research projects have mentioned the right to defense counsel.
Most of the aforesaid researches are conducted within the scope
of national laws only. Additionally, certain researches have
been written by way of a comparative approach and most of
them are likely a description of nations’ criminal procedure
laws. Furthermore, few researches relating to procedural rights
of the accused have been approached in the aspect of
international laws on guaranteeing human rights.
Generally, the foregoing researches have provided the
author with a large range of basic knowledge about the
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international criminal procedure, and of other countries,
especially Germany and the United States. As a result, a
comprehensive research on the right to defense counsel of the
accused as well as legal mechanisms guaranteeing rights in
comparison and contrast with international laws is greatly
requisite and meaningful.
5. Research methods
On the basis of the method of dialectical materialism and for
the purpose of well performing given duties of the theme, the
following common methods have been used to carry out
researches hereof: analysis and synthesis.
The universal tasks of sciencesin general and legal science
in particular are description, explanation, evaluation and
prediction. The theme is orienting to study provisions of laws,
as such, particular methods in the field of law academy have
been employed by the author while writing the dissertation.
Analysis can be mentioned as the first method based on legal
dogmatics. This method is used to interpret, analyze and assess
contents and effectiveness of statutory provisionsand
concurrently systemize them according to unified criteria and
based on that predict and recommend the developmental path of
such statutory provisions. Moreover, this method has also been
used in interpreting and comprehending correctly arguments of
courts and competent authorities, state policies as well as
relevant legal doctrines in international laws andlaws of three
selected countries (Vietnam, Germany and the United States)
regarding the guarantee of the right to defense counsel.
Applying this method in doing researches, I do wish to give a
comprehensive view of provisions of certain typical legal
systems regarding the guarantee of the right to defense counsel
and at the same time to propose appropriate recommendations
for improving the Vietnamese laws.
Legal comparisonis also a particular method of the
dissertation. Comparison between different legalsystems aims
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at not only finding out similarities and differences but also
making a comprehensive understanding and assessment of a
legal system. In addition, comparison is an effective method to
help point out strengths and weaknesses in each legal system.
The result thereof has also shown that there is no absolute
perfect in the criminal procedure laws of each country
regarding the guarantee of the right to defense counsel and the
study of experience of each other from legal practices of the
countries needs a selection. Taking advantage of the results of
comparison and contrast with the German and American
criminal procedure laws, the author has proposed
recommendations on improving the Vietnamese criminal
procedure laws regarding the guarantee of the right to defense
counsel on the basis of contrast, selection and consideration the
suitability to the conditions of Vietnamese laws.
Legal historical researching method has been also used by
the author to demonstrate linkages and continuance of legal
provisions and legal making perspectivesconcerningthe
guarantee ofthe right to defense counsel. Additionally,
interviews have been used to exchange information by way of
discussions with legal experts, lawyers and legal scholars in the
field of criminal procedure laws.Such interviews have been
very helpful in providing the author with an accurate and multi-dimensional view of legal systems at work.
6. New research results of the dissertation
This is one of scientific researches at Ph.D level approaching,
in a comprehensive manner, the guarantee of the right to defense
counsel of the accused by way of comparison of different criminal
procedure laws. The research theme has given a number of fresh
contributions as follows:
1. Giving an overview of historical perspectives of the
formation of the right to defense counsel. Clarifying of the
objective relationship between the guarantee of the right to
defense counsel and the concept of Due process of law and the
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foundation principle of the Right to fair trial in criminal
procedure. Pointing out the connection between the guarantee
of the right to defense counsel and the guarantee of the fairness
and unbiased in criminal procedure.
2. Generalizing views and conceptions of international laws
and Vietnamese laws concerning the right to defense counsel
by which summarizing and affirming fundamental contents of
guaranteeing of the right to defense counsel in both
international aspect and national one.
3. Systemize provisions of Vietnamese, German and US
criminal procedure laws concerning the guarantee of the right
to defense counsel by way of contrast and comparison.
Especially, it is hereby to point out similarities and differences
as well as appropriate aspects and limitations in each legal
system.
4. Givinga number of recommendations on improving the
Vietnamese criminal procedure laws concerning crimes and the
right todefense counsel on the basis of selectively absorbing
experience of Germany and the United States. Concurrently, it
is hereby to propose a number of recommendations on
enhancing the effectiveness of applying laws on guaranteeing
the right to defense counsel in Vietnam.
7. Outline of the dissertation
The dissertation is outlined according toits objectives,
subjects and scope of researches. The dissertation is composed
of the Introduction, List of Abbreviations, List of Reference
Materials and Five Chapters.