05/08/2022 09:26

Limits of trial and scope of criminal decisions of first-instance criminal trials in Vietnam

Limits of trial and scope of criminal decisions of first-instance criminal trials in Vietnam

One of the most important basic tasks of the judge assigned to preside over the trial, the first-instance trial of a criminal case is to try the right person, the right crime and the law, within the limits of trial and scope prescribed by the law in Vietnam.

1. Basic tasks of the first-instance Criminal trials

The first-instance trial of a criminal case is the first instance of the court by a Trial Panel based on the evidence and documents examined at the court hearing on the basis of fully and comprehensively examining the evidence in the criminal case. cases, opinions of procurators, defendants, defense counsels, and other procedure participants. From there, making a decision on whether a person charged with a particular crime is guilty or not; if yes, what crime was committed, according to points, clauses, and articles of the Penal Code; deciding on the application of penalties and judicial measures to the convicts; and settling other matters of the case. First-instance trials of criminal cases can be understood in a broad and narrow sense.

In a broad sense, the first-instance trial of a criminal case is the process of studying records, preparing for trial, and trying at the trial of a criminal case against the accused prosecuted by the Procuracy and the Court has issued a decision. the decision to bring the case to trial for a specific crime specified in the Penal Code. In this sense, the duty of the judge assigned to preside over the trial is not only to study the records and evaluate the evidence to conduct a preliminary determination of the crime and to predict the possible punishments for the defendant. The suspect is prosecuted but also has to deal with issues such as: jurisdiction to hear the case (whether the case falls under the jurisdiction of the court they are in charge of or not). If the case is not within the jurisdiction, the case must be transferred to the Procuracy for transfer to the Procuracy competent to prosecute; decide to apply, change, or cancel preventive measures; if there are enough grounds to bring the case to trial, it must carry out preparations for the opening of the court hearing and organize the trial to try the case; if there are not enough grounds to bring the case to trial and it is found that there are grounds, decide to return the file to the Procuracy for additional investigation; if there are grounds to suspend or temporarily suspend the case, a decision on suspension or temporary suspension of the case shall be issued.

In a narrow sense, the first instance trial of a criminal case is a first instance trial of a criminal case against a defendant charged with a particular crime. In this regard, the Trial Panel shall: question witnesses and documents, organize questioning, and argue in court sessions;A decree to evaluate evidence, documents that have been examined, and arguments of the procurator, the defendant, the defense counsel, and other procedure participants to decide whether the prosecuted person has committed the crime or not; if yes, what crime was committed, according to points, clauses, and articles of the Penal Code; decide on the application of penalties and judicial measures to the convicts; and sentence.

Thus, whether understood in a broad or narrow sense, one of the most important basic tasks of the judge assigned to preside over the trial or the first-instance trial panel of a criminal case is to judge the right person, the right crime, and the right law. That is, to try (judge and decide) exactly whether the person charged is guilty or not; if yes, what crime was committed, according to the point, clause, and article of the Penal Code; and decide on the application of penalties and judicial measures to that person.

2. Trial Limits

determining whether the person charged with the crime has committed a crime or not; if so, what crime, according to the points, clauses, and articles of the Civil Code; deciding on the application of penalties or judicial measures to that person is closely related to the Criminal Procedure Code provisions on trial limits, the scope of criminal decisions of first-instance trial panels, and the competence trial in criminal cases.In Article 298 ("Limits of trial"), the Criminal Procedure Code stipulates two issues:

First, the limitation of adjudication. We believe that the scope of the trial is the eve that the scope of the trial is the defendants' and the defendant's actions that the Court adjudicates according to the prosecution decision of the Procuracy. According to Clause 1, Article 298 of the Criminal Procedure Code, "The Court hears the defendants and acts according to the crimes prosecuted by the Procuracy and the Court has decided to bring the case to trial." Therefore, the Court can only hear the defendants and the acts prosecuted by the Procuracy that the Court has decided to bring to trial.

For example, (1) Nguyen Van A was prosecuted for the act of stealing Nguyen Van B's property for the crime of property theft. At the trial, although it was proved that Nguyen Van C and Nguyen Van A committed the act of stealing Nguyen Van B's property, the court was not allowed to convict Nguyen Van C of committing theft. The property was stolen because the Procuracy did not prosecute Nguyen Van C; and (2) Nguyen Van A was prosecuted by the Procuracy for 5 times committing the act of stealing property, each time the property was stolen with a value of over 2,000,000 VND or more. At the trial, although it was proved that Nguyen Van A also had another time to steal property valued at over VND 2,000,000, the court could only convict Nguyen Van A of 5 counts. The time of committing the act of stealing property without being convicted of the theft was proven at the trial. In the above cases, the Court must rely on Point b or c, Clause 1, Article 280 of the CPC to return the file for additional investigation.

Second, is the scope of criminal decisions of the criminal trial. The criminal decision of the criminal trial is the conclusion of the criminal trial when deliberating (must be recorded in the minutes of deliberation or judgment) on whether the prosecuted person has committed a crime (if any, then what crime, according to the point, clause, or article of the Criminal Code, the type and level of punishment that the person must serve) and declared at the court hearing. Based on the content of the decision on whether the defendant has committed a crime, the decision of the criminal trial can be divided into: The decision that the defendant is not guilty; the defendant's decision to commit a crime. In there:

-The defendant's decision not to commit a crime is the trial panel's conclusion that the accused person has not committed a crime. That is, the act being prosecuted does not constitute any crime in the Criminal Code, including the crime that the Procuracy prosecutes. With the decision that the defendant is not guilty, the decision part of the judgment must be written "Declaring that the defendant (example: Defendant Nguyen Van A) is not guilty." Currently, the Criminal Procedure Code only stipulates: "If the defendant is not guilty, the judgment must clearly state the grounds to determine that the defendant is not guilty and the settlement to restore their honor, rights, and legitimate interests in accordance with the law." provisions of law" as one of the contents of the first-instance judgment. In Article 298 of the CPC, the conclusion that the prosecuted person has not committed a crime is not considered a limited content of the first instance trial.

-The defendant's decision to commit a crime is the conclusion of the trial panel that the accused committed a crime specified in a specific point, clause, or article of the Criminal Code. With the decision that the defendant commits a crime, the decision part of the judgment must be written "Declaring the defendant guilty of a crime (Example: Claiming defendant Nguyen Van A committed the crime of stealing property...)". Compared with the crimes that the Procuracy has prosecuted, there are the following cases:

+ In the first case, the crime that the Trial Panel decides to apply is the same as the crime prosecuted by the Procuracy. That is, about the law (stipulating a specific crime), which the Trial Panel and the Procuracy unanimously apply to convict the accused. However, according to the provisions of Clause 2, Article 298 of the CPC, the Court may adjudicate the defendant under a different clause than the one that the Procuracy has prosecuted in the same article. Therefore, there are two possibilities:

First, the points and clauses of the law that the Criminal Trial applies to decide penalties against the defendants coincide with the points and clauses of the Articles that the Procuracy has prosecuted. For example, the Procuracy prosecutes the crime of fraud to appropriate property as prescribed in Clause 1, Article 174 of the Criminal Code, and the Criminal Trial decides the defendant is guilty of fraud to appropriate property as prescribed in Clause 1, Article 174 of the Criminal Code;

Second, the points and clauses of the Article that the Trial Panel applies to decide the penalty for the defendant do not coincide with the points and clauses of the Article that the Procuracy has prosecuted. For example, The Procuracy prosecuted the defendant for the crime of fraud to appropriate property under Clause 2, Article 174 of the Penal Code. The Trial Panel also decided the defendant was guilty of the crime of fraud to appropriate property, but clause 1, point ... Clause 3, or point... Clause 4, Article 174 of the Criminal Code to sanction the accused for this crime.

+ In the second case, the crime applied by the Trial Panel does not coincide with the crime prosecuted by the Procuracy. That is, the law (regulations on a specific crime) that the Trial Panel decides to apply to convict the accused does not coincide with the law that the Procuracy applies to prosecute the accused. Therefore, there will be three possibilities: First, the Trial Panel decides to apply the law to convict the defendant of the same crime that the Procuracy has prosecuted; second, the Trial Panel decides to apply the law to convict the defendant of a lesser crime than the one prosecuted by the Procuracy; and third, the Trial Panel decides to apply the law to convict the defendant of a crime more serious than the one prosecuted by the Procuracy.

In order to convict the defendant of a crime equal to, less than, or more serious than the crime that the Procuracy prosecutes, it is necessary to compare the crime that the Procuracy has prosecuted and the crime that the Court intends to try. Whereby:

- A crime other than the crime that the Procuracy has prosecuted is a case where the law provides for criminal liability (main penalty and additional penalty) for two similar crimes.

- Crimes other than those which the Procuracy has prosecuted are cases where the law provides for criminal liability (main penalties and additional penalties) for other crimes less severe than those that the Procuracy has prosecuted. The prosecutor prosecuted. To determine which crime is lighter and which is more serious, it is necessary to perform in the following order:

+ First of all, consider the main punishment for two crimes. If any crime has a heavier penalty, that crime will be heavier.

+ If the law states that the most severe penalty for both crimes is term imprisonment (no death penalty, life imprisonment): te law stipulates that the highest prison sentence for that crime is higher than that of the more serious crime.

+ In cases where the law prescribes the heaviest penalty for both crimes, either death, or both life imprisonment and term imprisonment, and the highest prison sentence for both crimes is the same, the law stipulates that a higher starting prison sentence is for a more serious crime.

+ If the law states that the harshest penalty for both crimes is imprisonment, and the starting prison sentence is the same, the highest prison sentence is the same, whichever crime the law still specifies the type of punishment. Other major punishments are lighter (non-custodial reform, fine, warning) when the crime is lighter. If the same law stipulates the same types of penalties but has a different highest level and starting point, the determination of the heavier and lighter crimes will be done in the same way as described above.

+ If the law stipulates the main types of punishment for both crimes are the same, the crime that the law also provides for additional punishment is the more serious crime. If the same law provides for the same additional penalty but for this offense the additional penalty is mandatory, and for other crimes additional penalties may apply, the crime for which the law provides for additional mandatory punishment is the more serious crime.

When applying Article 298 ("Limits of trial") of the Criminal Procedure Code, it is necessary to pay attention to two issues:

- The first issue is that when the Procuracy prosecutes the defendant for many crimes with many offenses, the Court can also try the defendant for the smallest crime among the crimes prosecuted by the Procuracy; or for crimes less than all crimes prosecuted by the Procuracy for all such offenses.

- The Procuracy prosecuted defendant Nguyen Van A for five crimes. In which two acts were prosecuted for robbery, and three were prosecuted for robbery. From there, the Court can convict (if there are grounds) defendant Nguyen Van A of: robbery and robbery for all five crimes prosecuted by the Procuracy (because the crime of robbery is lighter than the crime of robbery); or property appropriation for all five crimes prosecuted by the Procuracy (because the crime of property appropriation is lighter than the crime of property robbery and the crime of property robbery).

- The second issue is that if it is deemed necessary to try the defendant for a crime more serious than the one prosecuted by the Procuracy, the Court shall return the file to the Procuracy to re-prosecute and clearly notify the accused or the defendant's representative, so the defense knows. The coordination in returning dossiers for additional investigation in this case is done as follows:

In cases where the decision to institute criminal cases must be changed or the decision to prosecute the accused for other more serious crimes is required, the Procuracy returns the files to the investigating bodies for additional investigation to change the crimes and conclude the investigation into other more serious crimes.

If the procuracies have requested but the investigating bodies do not comply, the procuracies shall issue decisions to change the decisions to prosecute criminal cases, decide to prosecute the accused for other more serious crimes and request the procuracies to investigation shall comply with the provisions of Articles 156 and 180 of the Criminal Procedure Code;

In case the Procuracy still retains the indicted crime, the Court has the right to try the defendant for that heavier crime.

3. Disputes concerning jurisdiction

The provisions on whether the court can try the defendant for the crime that the prosecutor has prosecuted but under a heavier penalty frame (Clause 2, Article 298 of the CPC) or for a crime more serious than the one that the prosecutor has prosecuted (Clause 2, Article 298 of the Criminal Procedure Code). 3 Article 298 of the Criminal Procedure Code) can only handle criminal cases handled by the provincial People's Courts or military zone-level TAQS. Because the People's Courts of provinces and TAQS of military zones have jurisdiction to hear cases of less serious crimes, serious crimes, very serious crimes, and especially serious crimes. Therefore, in this case, the Procuracy prosecutes the defendant for less serious crimes, serious crimes, and very serious crimes, but the Court has accepted the case file and thinks that the defendant has committed a particularly serious crime, so the case has been returned. If the procuracies still uphold the charges prosecuted, the provincial-level People's Courts and military zone-level TAQS have the right to try the defendants for that particularly serious crime. In this case, the People's Courts of provinces and TAQS of military zones only need to strictly comply with the provisions of the Criminal Procedure Code on the adjudication competence of the courts at all levels, on the composition of the first-instance trial panels, and on the guarantee of the right to defend defendants [5].

In the case of district-level People's Courts or regional TAQS, the defendants cannot be tried for crimes or in terms of a more serious crime that the Procuracy has prosecuted if the crime or clause of the law that the Court intends to try is particularly serious crime because of violations of jurisdiction by type of crime. Because, according to the provisions of Clause 1, Article 268 of the Criminal Procedure Code, the district-level People's Courts and regional courts only have jurisdiction to hear criminal cases of less serious crimes, serious crimes, and very serious crimes.

With the mechanism specified in Article 298 of the Criminal Procedure Code, to thoroughly solve the case and ensure the principle of adjudicating the right person, the right crime and the law, the case must be tried by an appellate court or by cassation trial in the direction of annulling the first-instance judgment. Thus, in terms of procedural procedures, determining the jurisdiction to settle the case is very roundabout and takes time and effort unnecessarily. We believe that the fact that the district-level People's Court is handling the case means that the defendant is being prosecuted for a more serious crime and that, in order to try the right person for the right crime, according to the law, the case must fall under the jurisdiction of the court. A Superior People's Court is a form of jurisdiction dispute. However, Article 275 of the CPC does not provide for the settlement of disputes over adjudication between superior and inferior people's courts. Therefore, we recommend:

First, add a clause after Clause 2, Article 275 of the CPC, which reads: "The settlement of disputes over adjudication jurisdiction between the district-level People's Courts and superior people's courts in the same province, between military courts in regional relations with the superior military court in the same military zone shall be decided by the chief justice of the provincial people's court or the chief judge of the military court of the military zone";

Second, add a clause after Clause 3, Article 298 of the Criminal Procedure Code, which reads: "In case there are grounds to adjudicate the defendant on a clause or crime that is heavier than the clause or crime that the Procuracy prosecutes and the case falls under its jurisdiction." The court shall transfer the file to the superior court for the chief justice of the superior people's court to settle the dispute over adjudication.

The fact that the Chief Justice of the People's Court of the province or the Chief Justice of the TAQS of the military zone decides that the case falls under the jurisdiction of the superior court does not mean that the superior court (the Trial Panel) must conclude that the accused committed a crime as follows: the opinion of the district court, the regional military court, However, with this mechanism, the case will be thoroughly resolved without having to go through many levels and many times to try the case that the provisions of Article 298 of the Criminal Procedure Code have not been able to solve.

Nguyen Mai Bo. (Former Deputy Chief Justice of the Central Military Court)

Source: The Court Journal

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