PROVISIONS ON THE RIGHT TO ACCUSE IN CRIMINAL PROCEEDINGS

ABSTRACT

The right to request prosecution is the right to decide on criminal prosecution of the offender. This is the victim's right to accuse, expressed in Vietnamese criminal proceedings. The subject has the right to request the prosecution of a criminal case in case the prosecution is at the request of the victim or the victim's legal representative is a minor or a mentally handicapped person. or physical. In the article, the author analyzed the content of the victim's right to accuse and clearly stated the characteristics of this right in Vietnamese criminal proceedings.

АННОТАЦИЯ

Право требовать привлечения к ответственности – это право принимать решение об уголовном преследовании правонарушителя. Это право жертвы обвинять, выраженное во вьетнамском уголовном судопроизводстве. Субъект имеет право ходатайствовать о возбуждении уголовного дела в случае, если возбуждение уголовного дела осуществляется по заявлению потерпевшего или законным представителем потерпевшего является несовершеннолетний или умственно отсталый человек. или физическое. В статье автор проанализировал содержание права потерпевшего на обвинение и четко изложил особенности этого права во вьетнамском уголовном судопроизводстве.

Keywords: Vietnam, Criminal Procedure Code, right, investigation, victim, right to accuse, Court.

Ключевые слова: Вьетнам, Уголовно-процессуальный кодекс, право, расследование, потерпевший, право на обвинение, суд.

The victim or the victim's legal representative is a minor or a person with physical or mental weaknesses. In cases that are prosecuted at the request of the victim, the victim is the one who decides on prosecution. Criminal liability of the person who commits the crime, through the right to request the prosecution of a criminal case. The victim's request is the basis for the prosecution of a criminal case, meaning that although the case has signs of a crime, without the victim's request, the competent authority cannot prosecute, case. The victim's request is also a basis for terminating the criminal prosecution of the offender at certain stages of proceedings if such termination is not due to coercion.

Characteristics of the victim's right to accuse

The victim's right to accuse in Vietnamese criminal proceedings has some basic characteristics as follows:

Firstly, this is an exceptional regulation compared to the general concept of criminal legal relations that the State is the subject with the authority to decide the criminal prosecution of criminals. This is reflected in the principle of responsibility for prosecuting and handling criminal cases, with the requirement that “when detecting signs of crime, the Investigation Agency, Procuracy and Court within the scope of responsibility With their duties and powers, they are responsible for prosecuting the case and applying measures prescribed by the Criminal Procedure Code to identify criminals and handle offenders”. However, in cases where prosecution is initiated at the request of the victim, the handling of the offender depends on the will of the victim, through the right to request prosecution. If the victim does not request, the case will not be prosecuted and the offender will not be prosecuted.

Second, the victim's right to press charges only applies to cases of crimes whose danger is not as high as that of ordinary crimes. Prosecuting a case at the request of the victim only applies to cases where the crime is unintentional or intentional but the damage is not large, the nature of the abuse is not serious, and the object of the invasion is not serious. Criminal harm is often social relationships directly related to the victims themselves, that is, their health, honor, dignity and intellectual property rights. Depending on the actual situation in each stage of economic and social development, the crimes in the case of prosecuting the case at the request of the victim are changed accordingly.

Third, the will of the victim is decisive in prosecuting a criminal case. The will of the victim is expressed in whether or not to request to prosecute the case, this is a mandatory condition before prosecuting the case. Only when the victim requests can the case be prosecuted. If the victim does not request, the competent authority cannot decide to prosecute the case. At the same time, when the victim withdraws the request, it is a basis to end the criminal prosecution of the offender, but limited to certain stages of the proceedings. Thus, it can be said that the will of the victim is the basis for creating, changing, and ending the criminal prosecution of the offender.

Content of the victim's right to accuse in criminal proceedings

To ensure the victim's right to press charges in cases prosecuted at the victim's request, the law allows the victim the right to request prosecution, the right to withdraw the request to prosecute, and the right to press charges at trial. This is the content of the victim's right to accuse in criminal proceedings. Actual law in Vietnam does not recognize the right to private prosecution because the victim does not directly prosecute or prosecute but only has the right to request prosecution and make accusations at the preliminary hearing judge criminal cases. However, considering the nature of the right to private prosecution is the right to make decisions in prosecuting criminals for criminal liability, then in Vietnam this right is expressed in cases that are prosecuted at the request of the victim.

The right to request prosecution is the right to decide on criminal prosecution of the offender. This is the victim's right to accuse, most clearly demonstrating the nature of the right to private prosecution in Vietnamese criminal proceedings. The subject has the right to request the prosecution of a criminal case in case the prosecution is at the request of the victim or the victim's legal representative is a minor or a mentally handicapped person or physical. The right to request the prosecution of a criminal case naturally and must first belong to the victim, because they are the ones who directly suffer physical, mental, and property damage caused by the crime, so there can be no one else, do for them, decide for them on this issue. In cases where the victim is a minor, a person with physical or mental weaknesses, because the victim is incompetent, incapacitated, or unable to express his or her own will, the the new law gives the legal representative of the victim the right to make a request on behalf of the victim.

Although the current law does not have regulations on the content of requests to prosecute criminal cases, it can be understood that the content of requests for prosecution is a request to prosecute the offender for criminal liability. Therefore, if the general request is only to be handled according to the law, it is not a request to prosecute a criminal case. Regarding the form, “the request for prosecution by the victim or the representative is expressed by a request with their signature or fingerprint; If the victim or representative comes to present directly, the Investigation Agency and Procuracy must make a record clearly stating the content of the request for prosecution and request them to sign or fingerprint the record”. The content of the request for prosecution may also contain information about the crime, so the request for prosecution can be both a criminal complaint and a basis for determining the grounds for prosecuting a criminal case. However, the request to prosecute is a condition, not a basis for prosecuting a criminal case. The only basis for prosecuting a criminal case is signs of crime. If there is only a request to prosecute but there are no signs of a crime, the authorities cannot prosecute a criminal case. On the contrary, if signs of a crime are identified in the case of prosecuting the case at the request of the victim but there is no request for prosecution, the criminal case cannot be prosecuted. Thus, the legal consequence of the right to request prosecution in cases where a case is initiated at the request of the victim is that the case will be prosecuted.

The law that allows the victim the right to request prosecution also allows the victim the right to withdraw the request for prosecution. For previous cases where the victim requested prosecution and the criminal case was prosecuted at their request, but now the victim no longer requests, he or she has the right to withdraw the request for prosecution, but this can only be done before the opening date of the first instance trial. According to the provisions of the Criminal Procedure Code, in case the person who requested to prosecute withdraws the request before the opening date of the first instance trial, the case must be suspended, meaning that if the trial has already opened, the case will still be prosecuted. Conduct trial as usual, regardless of the will of the offender. Thus, the legal consequence of the victim withdrawing the request to prosecute is to suspend the case and end all proceedings in the case. Of course, if the defendant commits another crime or there is another person in the case, the authorities will continue to handle the case, only suspending the part of the case that the victim previously requested to initiate element.

Regarding the authority to suspend, whatever stage the case is in, that agency will suspend it. In the investigation stage, it is suspended by the Investigation Agency, in the prosecution stage, it is suspended by the Procuracy, and in the trial preparation stage, the Court has the authority to suspend. In reality, the victim's withdrawal of the request for prosecution does not always show their free will, but there are cases where they are forced, coerced, or coerced by others does not reflect their true wishes.

The victim or his/her legal representative presenting accusations at the first instance trial of the case is also part of the victim's right to accuse. This is the content that remains the same through the amendments and supplements to the Criminal Procedure Code. Most victims want the offender to suffer the most severe punishment, but there are also cases where the victim presents an accusation that shows tolerance and forgiveness for the offender's behavior and wishes to the court gives light treatment to the offender. The victim's accusation is usually just a request for the Trial Council to resolve the case properly, protecting their rights and not based on analysis and evaluation of evidence, except in the case of the victim or the victim.

Practical application and recommendations to improve the law on the right to accuse in criminal proceedings

Reality shows that some legal provisions on the victim's right to accuse are unreasonable and inconsistent, revealing problems and inadequacies that need to be amended and supplemented accordingly.

First, determining that the victims can only be individuals as currently will deprive agencies and organizations that have suffered damage caused by criminal acts of their right to accuse, and will not ensure justice, equality between subjects suffering the same damage. Accordingly, if an individual is identified as the victim, if an agency or organization is identified as a civil plaintiff or person with rights and obligations related to the case, while the conditions participating in proceedings, the rights and obligations of these subjects are different.

Therefore, if the person threatened with harm is not considered a victim, the law has invisibly deprived them of their right to request prosecution when the case is a case of prosecution at the request of the victim.

Therefore, author believe that it is necessary to research, amend and supplement the provisions of the Criminal Procedure Code regarding victims in the direction that victims include all individuals, agencies and organizations that suffer damage or a criminal act intended to cause damage but the consequences have not yet occurred due to objective causes beyond the will of the offender in order to meet the requirements of fighting and preventing crime in practice.

Second, the right to press charges in cases where the victim is a minor or a person with mental or physical weakness will belong to their legal representative. However, this regulation is not complete because in practice there are still cases where the legal representative of a minor or a person with mental or physical weakness cannot be identified, such as orphaned children. A lottery ticket seller was beaten and injured, or a mentally ill girl was raped. In these cases, because the legal representative of the victim cannot be identified, the case cannot be prosecuted and thus the offender will not be prosecuted, leading to the criminal being let go.

Third, the current regulations on the victim or their legal representative presenting accusations at trial are not appropriate. The victim is the subject of the accusation, but according to the provisions of the Criminal Procedure Code, during the questioning at the trial, the victim is only allowed to ask the presiding judge to ask more about details that need to be clarified in the case, without has the right to directly ask questions of the defendant and other participants in the proceedings. This limitation makes it difficult for the victim to defend his or her legitimate rights and interests during the argument and presentation of accusations at trial. In addition, author believe that the provision for the victim or their legal representative to present accusations at the trial in case the case is prosecuted at the request of the victim is also not appropriate, formalistic.

Fourth, the Criminal Procedure Code lacks provisions to ensure the victim's participation in the case resolution process to carry out and defend their prosecution request, leading to a significant limitation of the victim's right to press charges in fact. Currently, the procedure for resolving cases prosecuted at the victim's request is no different from normal cases.

References:

1. Constitution of the Socialist Republic of Vietnam 2013// URL: https://worldconstitutions.ru/?p=26  (date of application 22.05.2024)
2. Criminal Code of the Socialist Republic of Vietnam 2015// URL: https://www.wipo.int/wipolex/en/legislation/details/17225 (date of application 22.05.2024)
3. Criminal Code of the Socialist Republic of Vietnam 2015, amendments and additions in 2017// URL:  https://www.policinglaw.info/assets/downloads/2015_Criminal_Code_of_Vietnam (date of application 22.05.2024)
4. Criminal Procedure Codeof the Socialist Republic of Vietnam 2015, amendments and additions in 2021. // URL: https://wtocenter.vn/chuyen-de/20511-law-no-022021qh15-amending-the-criminal-procedure-code (date of application 22.05.2024)