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    TIẾN SĨ Guarantee of the accused person’s right to defense counsel -a comparative of vietnamese, german and american laws

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  6. Guarantee of the accused person’s right to defense counsel -a comparative of vietnamese, german and american laws

    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
    2
    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
    3
    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
    4
    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
    5
    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
    6
    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
    7
    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
    8
    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
    9
    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.

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