VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES L NGUYEN HOAI NAM EXERCISING THE RIGHT TO THE PUBLIC PROSECUTION AND INSPECTING TRIAL PANEL FOR CRIMINAL CASES OF THE HIGH-LEVEL PEOPLE’S PROCURACIES IN OUR COUNTRY TODAY Major: Criminal law and Criminal Procedure Major code: 9.38.01 04 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW HaNoi - 2019 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisor: Assoc Prof Dr Cao Thi Oanh Reviewer 1: Prof Dr Bui Minh Thanh Reviewer 2: Assoc Prof Dr Tran Van Do Reviewer 3: Assoc Prof Dr Hoang Thi Minh Son The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month …… …year 2019 The dissertation may be found at: - Vietnam National Library; - Graduate Academy of Social Sciences Library INTRODUCTION The necessity of the research topic The results of previous research works show that appellate, cassation, and reopening trial, as well as exercising the right to the public prosecution and inspecting appelate, cassation, reopening trial considered as an indispensable need in all judiciaries, an important stage of proceedings to ensure a fair and accurate hearing of criminal cases However, the way to organize activities of exercising the right to the public prosecution and inspecting appelate, cassation, reopening trial panel is different in each country and each historical period For Vietnam, the high-level People’s Procuracy is a new level in the 4-level People’s Procuracy system which undertake exercising the right to the public prosecution and inspecting trial panels under appellate procedures to the judgments and decisions that have not yet taken effect of provincial courts; exercising the right to the public prosecution and inspecting trial panels under cassation and reopening procedures to the judments and decisions that have taken effect of the provicial and district-level courts The high-level People's Procuracy model is still very new in our country The reality of exercising the right to the public prosecution and inspecting trial panels for criminal cases of the high-level People’s Procuracies shows that besides the achieved results, there are still many limitations Therefore, it is necessary to clarify theoretical issues, summarize experiences and propose solutions to enhance the quality of exercising the right to the public prosecution and inspecting trial panels for criminal cases of the high-level People’s Procuracy Research purpose and tasks The dissertation aims to clarify theoretical issues on exercising the right to the public prosecution and inspecting trial panels for criminal cases, the reality of stipulating and applying the law on exercising the right to the public prosecution and inspecting appelate, cassation, reopening trial panels for criminal cases and proposing some solutions to enhance the quality of this work at the high-level People’s Procuracy To achieve the above purposes, the dissertation tries to deal with some following tasks: Clarifying theoretical issues on exercising the right to the public prosecution and inspecting trial panels under appelate, cassation, reopening procedures of the high-level People’s Procuracy; Surveying the reality and application of the law on exercising the right to the public prosecution and inspecting trial panel for criminal cases of the high-level People’s Procuracy in Vietnam today; evaluating the achieved results, limitations and its causes; Clarifying requirements, directions and proposing solutions to enhance the efficiency of exercising the right to the public prosecution and inspecting trial panels for criminal cases at the high-level People’s Procuracy Research subject and scope The research subject is the course of exercising the right to the public prosecution and inspecting trial panels for criminal cases of the high-level People’s Procuracy The research scope: the study is conducted within the scope of science of Criminal Law and Criminal Procedure; using statistics on the course of exercising the right to the public prosecution and inspecting trial panels for criminal cases of the high-level People’s Procuracy over the last 10 years Methodology and research methods Methodology: the dissertation based on the methodology of historical and dialectical materialism; Marxism-Leninism, Ho Chi Minh thought on the state and law; the CPV’s viewpoints on judicial reform and building a socialist ruleof-law state; the provisions of the existing law, especially the provisions of the the Criminal Procedure Code (CPC) and the Law on Organization of the People's Procuracy The dissertation utilizes methods of analysis, synthesis, comparison, practical surveys, scientific seminars, direct interviews with experts and forecasting method New contributions of the dissertation The dissertation contributes to clarify some theoretical issues such as subjects, objects, contents and scope of exercising the right to the public prosecution and inspecting appelate, cassation, reopening trial panel for criminal cases; the study tries to survey and examine comprehensively activities of building law in practice, as well as applying the provisions of the law on the exercise of the right to the public prosecution and supervising trial panel for criminal cases of the high-level People’s Procuracies; it also seeks to evaluate correctly the achieved results, limitations and its causes; clarifying new requirements for exercising the right to public prosecution and inspecting trial panel for criminal cases of the high-level People’s Procuracies in the current period; proposing appropriate recommendations to improve the quality of this activity Theoretical and practical significance of the dissertation this is a scientific research work on exercising the right to public prosecution and inspecting appelate, cassation, reopening trial panel for criminal cases at high-level People’s Procuracies in Vietnam With scientific research methods, the dissertation seeks to deeply analyze and interpret the theoretical issues, statutory law and the application of the provisions of the law on exercising the right to public prosecution and inspecting appelate, cassation, reopening trial panel for criminal cases at high-level People’s Procuracies; evaluating the provisions of the law and the application of the provisions of the law on exercising the right to public prosecution and inspecting appelate, cassation, reopening trial panel for criminal cases at high-level People’s Procuracies over the last years; proposing some solutions to improve the law as well as ensuring the efficiency of the provisions of the law so as to enhance the quality of exercising the right to public prosecution and inspecting appelate, cassation, reopening trial panel for criminal cases at high-level People’s Procuracies in the near future The dissertation’s results have an imporant significance, as a basis for intensive studies on exercising the right to the public prosecution and inspecting trial panel for criminal cases The dissertation is also seen as an useful reference in researching, teaching and learning, as well as in practice of exercising the right to the public prosecution and inspecting appelate, cassation, reopening trial panel for criminal cases at high-level People’s Procuracies Structure of the dissertation Besides the introduction and conclusion, references and appendix, the dissertation includes chapters: Chapter 1: Literature review Chapter 2: Theoretical issues of exercising the right to the public prosecution and inspecting trial panel for criminal cases of the high-level People’s Procuracies Chapter 3: Provisions of the law and the reality of exercising the right to the public prosecution and inspecting trial panel for criminal cases of the high-level People’s Procuracies in our country today Chapter 4: Requirements, directions and solutions to ensure the quality of exercising the right to the public prosecution and inspecting trial panel for criminal cases of the high-level People’s Procuracies in our country today Chapter LITERATURE REVIEW 1.1 Domestic research situation So far, there have been many studies on issues related to the dissertation topic from various perspectives in Vietnam which can be divided into the following groups: 1.1.1 Research works on the public prosecution right, exercising the right to the public prosecution and inspecting trial panels Exercising the right to the public prosecution and inspecting appelate, cassation and reopening trial panels for criminal cases of the high-level People’s Procuracies regarding as a form of exercising public prosecution right and controlling judicial activities So far there have been many studies on general theoretical issues on public prosecution right, exercising the right to the public prosecution right and inspecting judicial activities This is the basis for further examine on exercising the right to the public prosecution and inspecting appelate, cassation and reopening trial panels 1.1.2 Research works on exercising the right to the public prosecution and inspecting appelate, cassation and reopening trial panels According to the current law, exercising the right to the public prosecution right and inspecting judicial activities in the process of resolving criminal cases to be carried out in various stages and by Procuracy’s levels and departments, in which, the high-level People’s Procuracies in Vietnam just have undertaken the task of exercising the right to the public prosecution and inspecting trial panels under cassation and reopening procedures History of Judiciary shows that the way to organize and operate public prosecution exercise and inspecting appelate, cassation and reopening trial panels is different in each country and each period By examining this issue, we can divide them into some groups such as research works related to appelate, cassation and reopening trial panels; studies related to exercising the right to the public prosecution and inspecting appelate, cassation and reopening trial panels by Procuracies; studies related to evaluating results and proposing measures to implement the course of exercising the right to the public prosecution and inspecting appelate, cassation and reopening trial panels 1.2 Foreign research situation Some foreign research works related to the dissertation such as “The book of prosecutor regime”, “Inspecting mission of the Chinese National Procuratorate Academy”, Beijing Legal Publishing House 2002 (Translation version of the Hanoi Procuratorate College); “Comparative criminal procedure” by John Hatchard, Barbara Huber and Richard Vogler eds B.I.I.C.L published, London, 1996; the monograph “The typical criminal procedure models in the world”, is part of the judicial partnership program (2012) 1.3 Assessing research situation and the pending questions need to be further examined in this dissertation 1.3.1 Research results that the dissertation will inherit So far there have been many studies on general issues on public prosecution right, exercising the right to the public prosecution, basic issues such as concepts, origin and scope of public prosecution right; concept, contents and scope of exercising the right to the public prosecution and relationship with public prosecution right Issues of inspecting trial panels relating to the dissertation such as concept, contents and scope of inspecting trial panels have basically been clarified So far there have been many research works analyze and clarify issues on to appelate, cassation and reopening procedures; some specific tasks and powers that the high-level People’s Procuracies must during this period such as appeal protest, litigation of procurators at the trial panel, as well as actual outcomes of exercising the right to the public prosecution and inspecting trial panels for criminal cases of the high-level People’s Procuracies have also been explored in a number of research works 1.3.2 The pending questions that need to be further examined The dissertation will inherit the relevant research results and it tries to further examine the following issues: it continues to clarify some theoretical issues such as subjects, objects, contents and scope of exercising the right to the public prosecution and inspecting appelate, cassation, reopening trial panel for criminal cases; the study tries to survey and examine comprehensively activities of building law in practice, as well as applying the provisions of the law on the exercise of the right to the public prosecution and supervising trial panel for criminal cases of the high-level People’s Procuracies; it also seeks to evaluate correctly the achieved results, limitations and its causes; clarifying new requirements for exercising the right to public prosecution and inspecting trial panel for criminal cases of the high-level People’s Procuracies in the current period; proposing appropriate recommendations to improve the quality of this activity Chapter THEORETICAL ISSUES OF EXERCISING THE RIGHT TO THE PUBLIC PROSECUTION AND INSPECTING TRIAL PANEL FOR CRIMINAL CASES OF THE HIGH-LEVEL PEOPLE’S PROCURACIES 2.1 Theoretical issues of exercising the right to the public prosecution during the period of hearing criminal cases by the high-level People’s Procuracy 2.1.1 Theoretical issues of exercising the right to the public prosecution during the period of hearing criminal cases Domestic and foreign research works show that the right to accuse is an issue of objective category There are many different viewpoints on the concept of exercising the right to the public prosecution but we can understand “the right to the public prosecution in criminal procedure is the right to represent the state to accuse people who have committed crimes” With such definition of the right to the public prosecution, we can understand “exercising the right to the public prosecution is the activities of the competent state authorities to use their legal powers stipulated by law to accuse people who have committed crimes” The right to the public prosecution can be exercised through many different stages in the process of resolving criminal cases such as proceed against, investigation, prosecution, and hearing In which, “Exercising the right to the public prosecution in hearing criminal cases is the activities of of the competent state authorities to use their legal powers stipulated by law in that period to accuse people who have committed crimes” 2.1.2 Appellate hearing and exercising the right to the public prosecution in the stage of appellate hearing for criminal cases 2.1.2.1 Hearing appeals (second-instance trial) to criminal cases * Two-level trial principle The research results show that the formation of two-level trial principle is an indispensable objective need The two-level trial principle in criminal proceedings is the dominant and compulsory ideology which expresses the State's orientation in proceedings to hear criminal cases and is stipulated by the Criminal Procedure Code In which, identifying a criminal case that is heard for the first time at the first-instance level (the first trial level) that can be retried and can only be heard again at the appeal level (the second trial level), if there is a valid appeal to properly resolve the case, ensuring the state’s interests, the legitimate rights and interests of citizens and organizations * Second-instance trial Second-instance trial occurs in case the higher court re-hears a case that has been tried by the lower tribunal (first-instance trial) Along with two-level trial principle, the criminal procedure law of most countries stipulates that secondinstance trial is the next proceeding stage of the first-instance trial stage, thereby creating a mechanism so that every case can be heard again 2.1.2.2 Exercising the right to the public prosecute in the stage of secondinstance trial to criminal cases * Subjects exercising the right to prosecute in the stage of second-instance trial to criminal cases In order to exercise the right to prosecute in the stage of second-instance trial to criminal cases, the state shall organize and assign agencies to this task By examining subjects exercising the right to prosecute in the stage of second-instance trial to criminal cases show that it depends on many factors such as the organization and jurisdiction of the court, legal traditions, political and socio-economic conditions * Contents of exercising the right to prosecute in the stage of secondinstance trial to criminal cases As the prosecutors use appropriate legal power stipulated by law to accuse a person who committed crimes at the second-instance court In order to exercise the right to public prosecution, the prosecutors must carry out activities such as launching trial through appeals against judgments or decisions that have not yet taken legal effect; exercising prosecution rights in the course of resolving a case in the appellate process (using the right to study appellate records, the right to additionally investigate and verify, the rights of procurators at the second-instance court) * Scope of exercising the right to the public prosecution of Procuracies in the stage of second-instance trial Exercising the right to the public prosecution of Procuracies in the stage of second-instance trial occurs right after the end of first-instance trial, judgments and decisions were issued Accordingly, the Procuracy has the right to appeal against, this leads to exercise the right to the public prosecution Exercising the right to the public prosecution in the stage of second-instance trial shall end when the appellate court issues a judgment or decision on that case 2.1.3 Cassation, reopening trial and exercising the right to the public prosecution during the cassation and reopening trial stage for criminal cases 2.1.3.1 Cassation and reopening for criminal cases Logically, the trial errors of the lower court can be detected right after the verdict (decision) has been issued, not yet taken legal effect, but sometimes detected later, when the verdict (decision) took effect Has the verdict been reviewed once it has taken effect? The research results show that there are different answers to this question Currently, most countries have provisions of reviewing verdicts This work can be divided into revision to discover violations while applying the law – cassation or discover errors in determining the truth of cases – reopening 2.1.3.2 Exercising the right to the public prosecution during the cassation and reopening stage for criminal cases * Subjects exercising the right to prosecute and inspecting cassation and reopening trial panels Like the stage of second-instance trial, subjects exercising the right to prosecute and inspecting cassation and reopening trial panels are different in countries * Contents: The Procuracy uses legal power in the cassation and reopening trial stage to investigate criminal liability and accuse person who committed crimes in the court When exercising the right to prosecute in the cassation and reopening stage, the Procuracy shall use the following legal powers: the right to appeal cassation and reopening, exercising the right to prosecute in the cassation and reopening stage (using the right to study files, additional investigation, the right to suspend judgment, decision that took effect but being appealed by the cassation and reopening procedure; the right of prosecutor at the cassation and reopening trial panel) * Scope of exercising the right to the public prosecution in the cassation and reopening stage Exercising the right to the public prosecution in the cassation and reopening stage begins since the court’s judgment and decision took effect It is the time 2.3.1 The relationship between the exercise of prosecution rights and inspecting trial for criminal cases 2.3.1.1 Distinguish the exercise of prosecution rights from trial inspecting From the above analysis, it can be seen that exercising the right to the public prosecution and inspecting trial should be considered both in common and different things 2.3.1.2 The interaction between the exercise of prosecution rights and inspecting trial Exercising the right to the public prosecution and inspecting trial are two independent functions of the People’s Procuracy but have close relations to each other, as unified and complementary activities 2.3.2 Factors affecting the quality of exercising the right to the public prosecution and inspecting trial for criminal cases of the high-level People's Procuracies 2.3.2.1 Adjustment of law to exercising the right to the public prosecution and inspecting appellate, cassation and reopening trial panels to criminal cases In order for exercising the right to the public prosecution and inspecting appellate, cassation and reopening trial panels are effective, the state relies on the law, using a series of specific legal means (legal norms, legal documents, legal relations, acts of exercising legal rights and obligations) to regulate social relations and impacting on social relations in the direction of increasing the quality of this work The provisions of the law governing this work include two main groups: the provisions directly adjust activities in exercising the right to the public prosecution and inspecting appellate, cassation and reopening trial panels of the high-level People’s Procuracies; the provisions on the order and procedures of appellate, cassation and reopening trial and the provisions of general criminal law 2.3.2.2 Conditions to ensure the exercise of the right to the public prosecution and inspecting appellate, cassation and reopening trial panels to criminal cases As other productive labor activities, exercising the right to the public prosecution and inspecting trial are affected by workers, tools, working facilities and the way of organizing works 11 2.3.3 Criteria for assessing the quality of exercising the right to the public prosecution and inspecting appellate, cassation and reopening trial panels to criminal cases Assessing the quality of exercising the right to the public prosecution and inspecting appellate, cassation and reopening trial panels to criminal cases is very complex Thus, there is no single indicator that can fully reflect the quality of this activity, the assessment must be based on a comprehensive system of criteria to measure various aspects such as: Criteria for assessing effectiveness of law enforcement on exercising the right to the public prosecution and inspecting appellate, cassation and reopening trial; Criteria for assessing quality and quantity of criminal case Chapter PROVISIONS OF THE LAW AND THE REALITY OF EXERCISING THE RIGHT TO THE PUBLIC PROSECUTION AND INSPECTING TRIAL PANEL FOR CRIMINAL CASES OF THE HIGH-LEVEL PEOPLE’S PROCURACIES IN OUR COUNTRY TODAY 3.1 Provisions of the law on exercising the right to the public prosecution and inspecting trial to criminal cases of the high-level People’s Procuracies in our country today 3.1.1 Position, duties and powers of high-level People's Procuracy in our country today High-level People's Procuracy is a direct subordinate of the Supreme People's Procuracy and is a superior of the provincial and district-level People's Procuracy in the course of exercising the right to the public prosecution and inspecting trial The high-level People's Procuracy has the following duties: exercising the right to the public prosecution and inspecting trial by appellate procedure to verdict and decision that have not taken effect by the provincial court; exercising the right to the public prosecution and inspecting cassation and reopening trial to verdict and decision that have taken effect by the provincial and district-level court; direct, guide and inspect professional work to exercising the right to the public prosecution and inspecting trial panels of lower People’s Procuracy 3.1.2 Provisions of law on exercising the right to the public prosecution during the appellate, cassation or reopening trial period for criminal cases of the high-level People's Procuracies in our country today 12 3.1.2.1 Provisions of law on exercising the right to the public prosecution during the appellate trial period a Appellate (second-instance) trial Both the 2015 and the 2003 Criminal Procedure Code (CPC) determine the nature of appellate trial is that superior court directly re-hears a case or review the first-instance decision that has not been taken effect and has been appealed or protested According to the provision of Article 170 of the 2003 CPC and Article 268 of the 2015 CPC, the provincial People's Courts have jurisdiction to hear first-instance of criminal cases to particularly serious crimes and other crimes specifically prescribed by the law If first-instance judgments and decisions of the provincial People's Courts are appealed or protested against, they shall be heard by the high-level People's Courts b Exercising the right to the public prosecution during the appellate trial period On the basis of the provisions of the law, exercising the right to the public prosecution during the appellate trial period to criminal cases has the following contents: protest against, supplement and change of protest; Exercising the right to the public prosecution during the process of resolving criminal cases by appellate order (studying files and additional verification; exercising the right to prosecute at the court panel) 3.1.2.2 The provisions of the law on exercising the right to prosecute during the cassation, reopening trial period to criminal cases of the high-level People's Procuracies a Cassation and reopening trial panel In nature, the 2003 and the 2015 CPC stipulate cassation trial means review verdict and decisions that have taken effect of the court but are protested against due to the serious violations in resolving the case Reopening trial means review verdict and decisions that have taken effect but are protested against because there are new circumstances that may substantially change the contents of the verdict and decisions which the court does not know while issuing such the verdict and decisions b Exercising the right to prosecute during the cassation, reopening trial period Based on the provisions of the law, it is possible to determine duties and powers of the Procuracy and procurator when exercising the right to prosecute 13 in the cassation, reopening trial period as follows: Appeal to cassation and reopening of criminal case; temporarily suspending the execution of judgments or decisions being appealed against cassation and reopening; exercising the right to prosecute in the cassation, reopening trial period 3.1.3 The provisions of the law of inspecting appellate, cassation and reopening trial panels for criminal cases of the high-level People's Procuracies Based on the provisions of the law, it is possible to identify main duties and powers of the Procuracy and procurator when inspecting trial as follows: Duties and powers in detecting violations; duties and powers in handling violations 3.1.4 Limitations of the law on exercising the right to prosecute in the appellate, cassation and reopening trial stage to criminal cases of the highlevel People's Procuracies 3.1.4.1 Limitations of the law on exercising the right to prosecute in the appellate, cassation and reopening trial stage to criminal cases of the highlevel People's Procuracies Regulations of exercising the right to prosecute in the appellate, cassation and reopening trial stage still have some inadequacies: there are not provisions on the scope of exercising the right to prosecute of Procuracy in the appellate stage; provisions of Article 266 of the 2015 CPC and Article 18 of the law on organization of the People’s Procuracy 2014 are inappropriate; there has not been any regulation on grounds for second-instance appeal as well as there have not been any regulation on exercising the right to prosecute and inspecting cassation and reopening trial panels 3.1.4.2 Limitations of the law of inspecting the appellate, cassation and reopening trial to criminal cases of the high-level People’s Procuracies Regulations of inspecting the right to prosecute in the appellate, cassation and reopening trial stage still have some inadequacies: here are not provisions on the scope and subject of inspecting trial by the Procuracy in each stage; provisions of Article 267 of the 2015 CPC and Article 19 of the law on organization of the People’s Procuracy 2014 are inappropriate; the procuracy's powers are meant to be tools to hearing, especially for detecting violations have not been fully and clearly stipulated; there are still unclear points of the legal norms on order and procedure for resolving cassation and reopening petition in general, the regulations on authority of the high-level Procuracy in particular 14 3.2 Exercising the right to prosecute and inspecting trial panels for criminal cases of the high-level People's Procuracy in practice in our country today 3.2.1 Exercising the right to prosecute in the appellate, cassation and reopening trial stage to criminal cases of the high-level People's Procuracies in practice 3.2.1.1 Exercising the right to prosecute in the appellate trial stage to criminal cases of the high-level People’s Procuracies in practice * Situation of accepting and solving appellate cases From June 1, 2015 to November 30, 2018, three high-level Procuracies accepted and heard 8,337 criminal cases with 14,926 defendants (high-level Procuracy 1: 4226 cases/7577 defendants; high-level Procuracy 2: 1299 cases/2156 defendants; high-level Procuracy 3: 2,812 cases/5,193 defendants); Heard 7,613 cases/13,352 defendants (high-level Procuracy 1: 3,844 cases/6,829 defendants; high-level Procuracy 2: 1252 cases/2056 defendants; high-level Procuracy 3: 2,517 cases/4,467 defendants); The unresolved cases: 724 cases/1,574 defendants (high-level Procuracy 1: 382 cases/748 defendants; high-level Procuracy 2: 47 cases/100 defendants; high-level Procuracy 3: 295 cases/726 defendants) * Appellate protest outcomes From June 1, 2015 to November 30, 2018, the provincial Court of First Instance had heard first instance of 16,010 criminal cases, after receiving and checking the sentences of court at the same level, the provincial Procuracy sent to high-level People’s Procuracy 12,744 judgments and decisions at first instance (reaching 79.6%) High-level People's Procuracy had inspected and issued 180 protests In the same period of time, high-level People’s Procuracies had exercised the right to prosecute and inspected appellate trial for 7,613 criminal cases/13,352 defendants, of which 959 cases/1,722 defendants had appellate protests of provincial People's Procuracy High-level People's Procuracy defended protests against of 1,617 defendants, withdrew protests of 105 defendants (6.1%) By hearing, the high-level People's Court accepted an appeal against of 1,374 defendants (85%) * Outcomes of exercising the right to prosecute at the appellate court - Achieved results in studying case files 15 Although the number of appellate cases is very huge, over the years, the high-level Procuracies have always made sure to study the case files and returned the files to the court within the time stipulated by law The quality of studying case files and set up the files of inspecting criminal cases have generally met requirement of exercising the right to prosecute and inspecting trial panels By examining files, Procurators have discovered issues need to be verified and supplemented so that the high-level People’s Procuracy can verify itself or request the provincial Procuracy and investigation agency to verify additionally - Achieved results in exercising the right to prosecute at the court of second instance Procurators have well implemented the regulations on interrogation at the court, actively participated in interrogation, contributed to clarify criminal acts, the nature and seriousness of the crimes as well as tricks, motives, the purpose of the crimes, harmful effects and record of defendants They have attempted to arguments with defendants, defense counsels and other proceeding participants; ensuring responses to defendants’ opinion as well as defense counsels and other proceeding participants 3.2.1.2 Exercising the right to prosecute in the cassation and reopening trial stage to criminal cases of the high-level People’s Procuracies in practice * Practice of receiving, processing, noticing and proposing appeals for cassation and reopening judgments and criminal decisions that have taken legal effect From June 1, 2015 to November 30, 2018, three People’s Procuracies received the total number of 7,246 petitions/3,386 criminal matters (High-level Procuracy 1: 3,695 petitions/1,400 matters, High-level Procuracy 2: 1,665 petitions/893 matters, High-level Procuracy 3: 1,886 petitions /1,038 matters); in which, the maximum number of the VKSND professional Affairs units to hand over to the high-level VKSND at the time of establishment is 1976 applications / 932 jobs; solved: 6352 applications / 2850 jobs (Advanced Institute 1: 3539 applications / 1348 jobs, Advanced Institute 2: 1067 applications / 557 jobs, Advanced Institute 3: 1,746 applications / 945 jobs); in which, the Supreme People's Procuracy hands over to the high-level People's Procuracies 1,976 petitions/932 matters; solved 6352 petitions/2,850 matters (High-level Procuracy 1: 3,539 petitions/1348 matters, High-level Procuracy 2: 16 1,067 petitions /557 matters, High-level Procuracy 3: 1,746 petitions /945 matters) Results: The issuance of the decision to appeal 377 petitions/282 matters; Answer to not to protest 3884 petitions/1,900 matters; Other solving 2,097 petitions/668 matters Compared with the previous stage of 4-level People’s Procuracy system, resolving petitions for cassation and reopening appeals of the Procuracy has made great progress * Practice of exercising the right to prosecute in the cassation and reopening trial stage From June 1, 2015 to November 30, 2018, three People’s Procuracies received 898 criminal cases/2122 defendants under the cassation and reopening procedure, including: High-level Procuracy 1: 491 cases/1,431 defendants, High-level Procuracy 2: 183 cases/261 defendants, High-level Procuracy: 224 cases/430 defendants; amongst 898 cases of cassation and reopening, 03 highlevel Procuracies accepted 254 cases of cassation and reopening that protested by Procuracy (the Supreme People's Procuracy appealed 11 cases and 03 highlevel Procuracies protested 243 cases), accounting for 28.2%; 843 cases/1,983 defendants were resolved, in which, High-level Procuracy 1: 478 cases/1,401 defendants, High-level Procuracy 2: 164 cases/192 defendants, High-level Procuracy 3: 201 cases/390 defendants; For appeals for cassation and reopening of the Procuracy, the cassation and reopening trial panel accepted the protest 232/254 cases accounting for 91.3%(exceeding the target compared to the requirements of the National Assembly is 85%) This shows that the cassation and reopening appeals of the high-level Procuracy over the last years have ensured in terms of quality 3.2.2 Inspecting the appellate, cassation and reopening trial panels to criminal cases of the high-level People's Procuracies in practice 3.2.2.1 Inspecting second-instance trial to criminal cases of the high-level Procuracies in practice * Detecting violations In general, activities of inspecting trial of Procuracy are still limited but there have been many positive changes in inspecting first-instance verdicts in recent years On the basis of the provisions of the law and the regulations of exercising the right to prosecute and inspecting trial of the Supreme People's Procuracy, detecting violations in verdicts and decisions first instance has been systematically implemented by the high-level People’s Procuracies Additionally, in many cases, 17 the high-level People’s Procuracies have promptly issued appropriate petitions In fact, the People’s Procuracies have issued 65 petitions, in which 25 petitions for inspecting verdict and decisions first instance * Resolving violations Over years (from June 1, 2015 to November 30, 2018), by inspecting appellate trial for criminal cases, high-level Peoples Procuracies promptly detected violations so as to have flexible measures such as issuing petitions to overcome in documents, discuss directly with court of the same level Highlevel People’s Procuracies issued 65 petitions (compared to years between 2012 and 2014, they just issued 36 petitions), the content of petitions was quite diverse In fact, however, appellate appeals of high-level People's Procuracies are mainly aimed at overcoming shortcomings when applying the provisions of the Penal Code; there is a very little appellate appeals violate procedural procedures (for example, Appeal No 03/QD-VC1 dated December 29, 2015 of the high-level People's Procuracy in Hanoi on the court first instance violated the provisions of the CPC regarding jurisdiction, the People's Court hears the case under the jurisdiction of the military court) 3.2.2.2 Inspecting the cassation and reopening trial to criminal cases of the high-level Procuracies in practice * Detecting violations Similar to inspect the appellate trial panels, in fact, activities of detecting violations through the cassation and reopening trial are not fully reflected In addition to inspect the cassation and reopening judgments, activities of inspecting trial to detect violations during the stage of preparation for hearing and hearing cassation and reopening are not reflected and statistics into system * Resolving violations By inspecting cassation and reopening trial to criminal cases from June 1, 2015 to November 30, 2018, three high-level People's Procuracies issued 49 petitions to agencies and organizations to deal with violations In addition to cases of appeals for cancellation of verdict and decisions that took effect of the first-instance court due to the serious mistake in applying Criminal Code and violating legal procedures; there have been a large of appellate and reopening appeals due to mistakes of the first-instance court 18 3.2.3 Limitations and shortcomings in practice of exercising the right to prosecute and inspecting the appellate, cassation, and reopening trial panels to criminal cases of the high-level People's Procuracies and its causes 3.2.3.1 Limitations and shortcomings in practice of exercising the right to prosecute in the appellate, cassation, and reopening trial stage to criminal cases of the high-level People's Procuracies and its causes In fact, there are still some limitations in implement regulations of exercising the right to prosecute by Procuracies in the stage of the appellate, cassation, and reopening such as the high-level People’s Procuracies have not promptly detected violations of first-instance verdict and decisions; the quality of studying case file as well as the quality of exercising the right to prosecute of Procuracies at the court is not uniform; in fact, some Procuracies are not really proactive and active in proving their views; conclusions are still common; they are not active and proactive while arguing There are still some limitations in exercising the right to prosecute and inspecting the cassation and reopening trial such as there are still very large number of unresolved appeals and is increasing; the high-level Procuracies are still very confused about process as well as the coordination with other levels in dealing with problems 3.2.3.2 Limitations and shortcomings in practice of inspecting the appellate, cassation, and reopening trial panels to criminal cases of the highlevel People's Procuracies and its causes In fact, there are still some limitations in implement regulations of inspecting trial in the stage of appellate, cassation, and reopening trial such as in exercising the right to prosecute and inspecting trial, prosecutors and staffs did not take note and monitoring the compliance with the law of the court, trial panel as well as other subjects in each proceeding Therefore, high-level Procuracies cannot make statistics how many cases that the court and trial panel complying with regulations or not? What did they violate? The procedural violations in the process of resolving the cases have not been detected leading to the number of petitions and protests against these violations is not much The Procuracies’ petitions as measures to deal with violations have not been regularly, promptly implemented, inappropriate content and not much meaning 19 3.2.3.3 Causes of limitations and shortcomings in the exercise of the right to the public prosecution and inspecting the appellate, cassation and reopening trial to criminal cases of the high-level People's Procuracies There were objective and subjective reasons The objective reasons include limitations of the law on exercising the right to the public prosecution and inspecting the appellate, cassation and reopening trial All three high-level Courts are currently lacking staffs, especially judges; the coordination of agencies with high-level People’s Procuracies is not good The subjective reasons include the shortage of staffs in terms of quantity and quality; lack of office facilities, equipment and funding for work; In addition, the provisions of the law on positions, functions, duties and powers of the high-level Procuracies are quite new, specific regulations on the relationship between the professional departments of the Supreme People's Procuracy and high-level People's Procuracies and local People's Procuracies are slowly issued and incomplete Chapter REQUIREMENTS, DIRECTIONS AND SOLUTIONS TO ENSURE THE QUALITY OF EXERCSING THE RIGHT TO THE PUBLIC PROSECUTION AND INSPECTING TRIAL PANEL FOR CRIMINAL CASES OF THE HIGH-LEVEL PEOPLE’S PROCURACIES IN OUR COUNTRY TODAY 4.1 Requirements for exercising the right to the public prosecution and inspecting trial for criminal cases of the high-level People's Procuracies 4.1.1 Requirements arising from the policy of organizing the 4-level People's Procuracy system The process of building law and the law enforcement on exercising the right to the public prosecution and inspecting trial panels for criminal cases at the People’s Procuracies must well implement policy of 4-level People’s Procuracies Specifically, it must be ensured that the high-level People’s Procuracies play major role in hearing cases, freeing the Supreme People’s Procuracy from the affairs; it is necessary to change the old working habit, for example, units are charged in resolving cases by the cassation and reopening procedures at the central level still “keep” the previous works instead of transferring to high-level People’s Courts and high-level People’s Procuracies as prescribed At the same time, exercising the right to prosecute and inspecting 20 trial at the high-level People’s Procuracies must be implemented by the unified direction to achieve the efficiency on the whole system; In which, exercising the right to prosecute and inspecting trial to criminal cases at the high-level People’s Procuracies must comply with the direction of the Supreme People’s Procuracy and the high-level People’s Procuracies must direct this work for the lower People’s Procuracies 4.1.2 New requirements for exercising the right to prosecute and inspecting trial for criminal cases of the People’s Procuracies in the current period By implementing the policy on judicial reform, in recent years, many important acts such as the 2014 Law on the People’s Procuracies, the 2014 People’s Court, the 2015 law on criminal investigation; the 2015 Criminal Procedure Code and the Penal Code were enacted creating a full and scientific legal basis but also posing new requirements for judicial activities in general For exercising the right to prosecute and inspecting trial for criminal cases of the Procuracies need to well implement the following issues: Improving the quality of litigation, guaranteeing litigation at the trial panels; thoroughly grasping the principle of innocent guess in criminal proceedings to ensure human rights in judicial proceedings by the requirements of judicial reform and the provisions of the new Constitution 4.2 Viewpoints and directions of ensuring the quality of exercising the right to the public prosecution and inspecting trial panels for criminal cases of the high-level People’s Procuracies - Completing operation of exercising the right to prosecute and inspecting trial panels for criminal cases of the high-level People’s Procuracies on the basis of the Party’s views and guidelines on judicial reform - Completing operation of exercising the right to prosecute and inspecting trial panels for criminal cases of the high-level People’s Procuracies must be based on practical experiences in exercising the right to the public prosecution and inspecting trial panels of Vietnam People’s Procuracies, and based on the experiences of some countries around the world - Completing operation of exercising the right to prosecute and inspecting trial panels for criminal cases of the high-level People’s Procuracies must be based on inheritance of staffs and facilities of the high-level People’s Procuracies 21 4.3 Solutions to ensure the quality of exercising the right to the public prosecution and inspecting trial panels for criminal cases of the high-level People’s Procuracies In order to improve the quality of exercising the right to prosecute and inspecting the appellate, cassation and reopening trial to criminal cases of the high-level People's Procuracies should pay attention to well the following issues: 4.3.1 Solutions to improve the provisions of the law on exercising the right to prosecute and inspecting the appellate, cassation and reopening trial to criminal cases 4.3.1.1 Improving the provisions of the law on exercising the right to prosecute in the stage of appellate, cassation and reopening trial to criminal cases For Article 266 of the 2015 CPC and Article 18 of the Law on Organization of the People's Procuracy 2014: it is necessary to clearly stipulate the scope of exercising the right to prosecute in each stage of trial first instance, second instance, cassation and reopening Regarding the contents of exercising the right to prosecute, the specific powers of the Procuracy to exercise the right to the public prosecution should not be listed in Article 266 It is necessary to strengthen the provision of these powers in article, chapters and other parts of the CPC 4.3.1.1 Improving the provisions of the law on inspecting the appellate, cassation and reopening trial to criminal cases For Article 267 of the 2015 CPC and Article 19 of the Law on Organization of the People’s Procuracy 2014: it is necessary to clearly stipulate the scope of inspecting trial in each stage of trial first instance, second instance, cassation and reopening; clearly stipulate subjects of inspecting trial and subjects in each stage of trial first instance, second instance, cassation and reopening Regarding the contents of inspecting trial, the specific powers of the Procuracy to inspect trial should not be listed in Article 266 It is necessary to strengthen the provision of these powers in article, chapters and other parts of the CPC * Adding specific powers for Procuracies to inspect trial panels 4.3.2 Solutions to implement the provisions of the law exercising the right to prosecute and inspecting the appellate, cassation and reopening trial to criminal cases 4.3.2.1 Personnel organization 22 * Completing the organizational structure: To enhance the operational efficiency, it is necessary to further improve the Procuracy body as follows: Establishing local inspection Department in the Professional Procuracy and adjusting duties, and reducing some rooms in the Professional Procuracy * Regarding staffs: It is necessary to further supplement staffs for the high-level Procuracies by the assigned staffing norms and should pay attention to both quantity and quality of staffs 4.3.2.2 Regarding the guaranteed facilities and conditions It is necessary to arrange working offices, increase equipment and facilities to service professional work, as well as supplementing funding for high-level People’s Procuracies The Supreme People's Procuracy needs to add funding for the high-level People’s Procuracies 4.3.2.3 Building collaborative relationships It is necessary to supplement regulations on the relationship of the highlevel Procuracies with the Procuracies in the Procuracy system, on the basis of the principle of ensuring uniform direction; At the same time, the Supreme People's Procuracy and the central judicial branches should issue early circulars on coordination of resolving criminal cases in the stage of appellate, cassation and reopening trial, and between high-level People's Procuracies and high-level People's Courts, provincial-level or district-level People's Courts, judgmentexecuting agencies, and investigating agencies CONCLUSION Along with the appellate, cassation and reopening trial, there is always activity of exercising the right to the public prosecution in this stage In addition, in certain social conditions, in many countries, the Procuracies have been assigned a more function of inspecting trial panels The appellate, cassation and reopening trial means the higher Court will control and review trial results of the subordinate Court so as to ensure the verdict and decisions were issued accurately Due to the important nature of this trial period, activities of exercising the right to the public prosecution and inspecting the appellate, cassation and reopening trial panels should be strengthened 23 The 2013 Constitution and the Law on Organization of the People’s Procuracies 2014 stipulated a system of 4-level Procuracies, including the highlevel People’s Procuracies The high-level People's Procuracies have duty of exercising the right to the public prosecution and inspecting trial by appellate procedure for verdict and decisions that have not taken effect of the provincial court; exercising the right to the public prosecution and inspecting trial by cassation and reopening procedures for verdict and decisions that took effect of the provincial and district-level courts At the same time, the provisions of the law on the duty of exercising the right to the public prosecution and inspecting trial by appellate, cassation and reopening for criminal cases of these Procuracies have basically amended and supplemented and relatively appropriate although there are still some inadequacies and limitations In fact, after high-level People’s Procuracies were established, they have to undertake many works in exercising the right to the public prosecution and inspecting trial by appellate, cassation and reopening procedures Although the workload is increasing, over the past years, the high-level People’s Procuracies have basically completed their tasks, many activities have been more effective than previous period However, in addition to the achieved results, some activities of high-level People's Procuracies have not been fully implemented, some other activities have not been effective In order to complete the course of exercising the right to the public prosecution and inspecting trial for criminal cases of the high-level People’s Procuracies, it is necessary to synchronously implement many solutions, in addition to complete the legal system in general, specific provisions of exercising the right to prosecute and inspecting trial for criminal cases in particular, it is necessary to implement solutions on the implementation of provisions of the law such as completing the organizational structure, adding more staffs, strengthening facilities and completing early regulations on institutions and working practices, and creating favorable conditions for the working coordination of the high-level People’s Procuracies 24 THE AUTHOR’S PUBLISHED-RESEARCH WORKS LIST I Journal articles Nguyen Hoai Nam (Aug 2010) “Achievements within years of implementing Directive No 03/2008/CT-VKSTC-VPT1 of the Director-General of the Supreme People’s Procuracy on strengthening criminal appeals”, Procuratorate Magazine, No 16, pp 9-15 Nguyen Hoai Nam (July 2015) “Some recommendations on determining the relationship among Procuracies at all levels in criminal proceedings in our country today”, Procuratorate Magazine, No 13, pp 34-38 Nguyen Hoai Nam (2018) “Some issues of inspecting appellate, cassation and reopening trial panels to criminal cases”, Procuratorate Magazine, No 20, pp 31-36 Nguyen Hoai Nam (2018) “Some issues of exercising the right to prosecute and inspecting criminal case trial”, Journal of Procuratorial Scinence, No 5, pp 3-11 II Ministerial level projects “Improving the quality of exercising the right to prosecute and inspecting the appellate trial to the position-based economic cases”, Ministerial level project 2011-2012 “Theoretical and practical basis of establishing the high-level People’s Procuracies to meet the requirement of judicial reform”, Ministerial level project 2011-2013 “High-level People’s Procuracies in the new People's Procuracy system”, Ministerial level project 2015-2017 25 ... each stage of trial first instance, second instance, cassation and reopening; clearly stipulate subjects of inspecting trial and subjects in each stage of trial first instance, second instance,... the first-instance trial stage If there are serious violations in the first-instance trial stage, the appellate Procuracies must request the appeal court to cancel the first-instance judgments... prosecute in the stage of second-instance trial to criminal cases In order to exercise the right to prosecute in the stage of second-instance trial to criminal cases, the state shall organize