Introduction
Criminal procedures revolve around interactions between the prosecution and the defence. These are significantly shaped by long-standing distinctions between adversarial and inquisitorial legal systems.Footnote 1 The principle of equality of arms mandates that the parties to a lawsuit be given equal opportunities. It seems to have an innate connection with the adversarial model of the criminal process, which is generally regarded as inherent in common law traditions.Footnote 2 In fact, equality of arms constitutes a necessary condition for a proceeding to be regarded as adversarial in its traditional sense within common law criminal justice systems. Therefore, equality of arms is not merely a related concept but is fundamentally integrated into the broader framework of the adversarial model.Footnote 3 Federova has argued that, by its very nature, the inquisitorial process - which is often associated with civil law and socialist countries - does not readily lend itself to the principle of equality between the parties.Footnote 4 However, in recent decades, in the context of globalisation, elements of adversarial systems, including equality of arms, have been diffused into countries that have traditionally maintained inquisitorial systems.Footnote 5 The precise process varies based on each nation’s historical and cultural context. This article focuses on the case of Vietnam.
Vietnam, being a socialist country led by the Communist Party, possesses a legal system with unique historical and traditional roots. With the initiation of the Doi Moi (Renovation) policy, Vietnam transformed its economy from a centrally planned to a market-oriented one, marked by widespread international economic cooperation and influences from both other countries and international organisations.Footnote 6 In this context, the criminal justice system of Vietnam introduced adversarial features into its inquisitorial system. However, Vietnamese legal thought is still strongly influenced by the legal tradition of socialist law.Footnote 7 These historical and contextual factors of Vietnam’s socialist criminal justice system inevitably influence its reception of the principle of equality of arms.
This article adopts Goodman and Jinks’ theory, which explains how states receive and apply international law and legal standards from different legal systems.Footnote 8 Focusing on Vietnam’s case, this article demonstrates that the adoption of external values and standards results from a process involving three mechanisms: coercion, persuasion, and acculturation, with acculturation being the primary mechanism. However, Goodman and Jinks have yet to develop the details of their discussion of domestic impediments that may also impact a country’s process of adopting international standards. This article observes that despite deeper engagement with international norms and concepts, Vietnam’s adoption of the principle of equality of arms remains largely influenced by the socialist foundations of its criminal justice system and rationalist legal tradition, which is based on collectivist culture, a specific crime control model, the substantive truth doctrine, a blurred separation of function between procedural agencies, and the judicial supervisory role of the procuracy.
The structure of this article is as follows: it first examines the meaning of the principle of equality of arms and its contemporary application. The article then discusses its recognition in the International Covenant on Civil and Political Rights (ICCPR)Footnote 9 before setting out the mechanisms for internalisation of international norms in Vietnam, the diffusion of the principle of equality of arms in Vietnamese law, and the factors of the socialist criminal justice system that impact the application of this principle. The final section concludes.
Equality of arms − an alien concept?
In common law, criminal proceedings have traditionally been viewed as battles, an idea often traced to ancient Rome, with the parties involved (prosecution and defence) compared to gladiators.Footnote 10 Viewing the legal process as a battle between two parties may arise from the view that the adversarial system succeeded private vengeance. According to Feeley, criminal law developed out of tort law, when the aggrieved party sued as a private complainant.Footnote 11 Although crime is now considered an act against the public, it still has remnants of this earlier practice. This manifests in the fact that the prosecutor has the authority to bring or drop charges as a private complainant, and it is these common law remnants that account for allowing or promoting plea bargaining. In private prosecutions, the accuser remains an individual without any formal authority. Like a party in a civil case, the accuser is required to hire their own lawyer; they participate in the proceedings as an interested party in the case. Thus, they have the same rights to enter into an agreement as parties in a civil case.Footnote 12
The equality of arms principle is also known as audi alteram partem, which means ‘hear the other side’.Footnote 13 According to Bingham,Footnote 14 a fair opportunity for the prosecutor or complainant as well as the accused to prove their case must be provided. The adversary argument principle is procedural in nature: it indicates how to arrive at a just outcome, instead of providing a substantive definition of a just outcome.Footnote 15 Negri emphasises that the principle of procedural equality should be considered a fundamental rule of law, not just a guiding principle, at every stage of the proceedings to effectively protect the rights of the parties, especially the rights of weak litigants.Footnote 16 Similar to this approach, Silver contends that in criminal cases, where there is a fundamental inequality between the parties, the concept of equality of arms becomes more important.Footnote 17 Consequently, it would be ideal to offer the defence a wide range of advantageous legal alternatives. In addition to the positive element, the principle’s actual contents might be more clearly expressed as a negative demand in the form of a prohibition of making the defendant’s disadvantage worse.Footnote 18
The principle of equality of arms seems to be intrinsically linked to the adversarial criminal procedural model. Indeed, equality of arms is a necessary condition for a trial to be considered adversarial in the traditional sense associated with common law’s criminal justice systems.Footnote 19 It is usually assumed that countries with common law traditions adopt an adversarial style in criminal proceedings, but the separation is not as clear as it may seem.Footnote 20 Packer asserts that potential adversarial arguments might occur during the procedure, irrespective of the procedural model. The commonality is that the process could, at least in part, turn into an adversarial conflict for anyone involved.Footnote 21 The principle of equality of arms, although traditionally related to Anglo-Saxon law as a procedural device to uphold the adversarial nature of proceedings,Footnote 22 has acquired an autonomous meaning and is deemed applicable in procedural systems that are both adversarial and inquisitorial.Footnote 23
The global framework of human rights, based on the ideals of equality, dignity, and justice, has inspired and driven the development of today’s global legal norms.Footnote 24 The ICCPR is the most prominent and important modern human rights treaty.Footnote 25 As a universal document, it contains legally binding obligations for its members, coming from all ‘geopolitical regions of the world [which] renders it less susceptible to criticism as being found on a Western, individualistic, or alien philosophy’.Footnote 26 The Human Rights Committee has expressed that the principle of equality is inherent to the right to a fair trial, ensuring equal access, equality of arms, and treatment without discrimination for all parties involved in proceedings.Footnote 27 All parties must have equal procedural rights, unless there is a legal basis stating otherwise, ensuring that the defendant does not face any disadvantage or unfair treatment.Footnote 28 The accused must have sufficient time and resources to prepare their defence and must also be guaranteed the right to cross-examine witnesses testifying against them, as well as the right to request the attendance and examination of witnesses in their favour under the same conditions as those for witnesses against them.Footnote 29 These are seen as United Nations’ efforts to provide guidelines for member states to envision the application of equality of arms in their judicial systems.
Drive for diffusion
Considered as part of the diffusion of law theory, Goodman and Jinks’ theory analyses three different mechanisms that influence the behaviour of states in the process of internalising the rules and principles of international human rights law. These mechanisms include coercion, persuasion, and acculturation. Coercion occurs when states are forced to change their behaviour through forms of rewards or punishments.Footnote 30 Persuasion occurs when states change their behaviour after being convinced of the correctness and legitimacy of human rights law. In this case, states change their viewpoints through information exchange and debate.Footnote 31 Acculturation refers to the process by which states gradually adopt the beliefs, behaviours, and norms of a surrounding culture, primarily through social pressure and assimilation, not necessarily through profound changes in perception.Footnote 32 In practice, the integration of international standards rarely occurs through a single mechanism and often involves multiple processes. In the case of Vietnam, the diffusion of international norms, values and principles from other legal traditions appears primarily acculturative, while also incorporating elements of persuasion and inducement through material conditionality via learning, dialogue, and the signing of agreements, respectively.
Acculturation
In the early twenty-first century, Vietnam’s heightened involvement in global affairs, together with its membership in international organisations and human rights regimes, contributed to a profound shift in the legislative philosophy of the Vietnamese government. Vietnam, seeing itself as a small state, has become more receptive to international human rights norms and increasingly willing to actively participate in multi-level dialogue.Footnote 33 Vietnam has ratified or acceded to seven out of nine core United Nations human rights conventions and twenty-five International Labour Organization (ILO) conventions, including seven out of eight core conventions. Through these ratifications, Vietnam seeks to demonstrate that, compared to many countries in the region as well as developed nations, it is not lagging behind in terms of being a member of international human rights conventions.Footnote 34 Vietnam has also made efforts to become a member of the United Nations Human Rights Committee for the 2001–2003 term and the Human Rights Council for the 2014–2016 and 2023–2025 terms. It has been a member of the Executive Board of United Nations Women for the 2025–2027 term and seeks candidacy for the Human Rights Council for the 2026–2028 term.Footnote 35 Improving its international image and affirming its role in international fora is a motivating factor for Vietnam to adopt international legal standards. In this context, reforms in criminal procedural law and increased protection of human rights help position Vietnam as a developing country progressing toward modernisation and integration. This illustrates status maximisation through the acculturation mechanism, a process that has diminished the statist nature of constitutional rights. When combined with economic reform and international standards, this mechanism fosters a modern approach to human rights within the Vietnamese legal framework.
Cultural exchange and globalisation across various domains have led to a positive evolution in Vietnam’s criminal procedure model. After the 1986 Renovation, and especially when the doctrine of ‘socialist rule of law’ was incorporated into the 1992 Constitution, liberal constitutionalism has increasingly influenced Vietnam.Footnote 36 While the current Constitution still reinforces socialism, Vietnam has transitioned from a Soviet-style state to a broader understanding of human rights.Footnote 37 Since the 2013 Constitution was enacted, many legal documents have been amended to improve the protection of human rights. A key imperative arising from this transformation is the need for judicial reform, with a specific focus on safeguarding human rights within legal proceedings. Resolution 49-NQ/TW dated 2 June 2005 of the Politburo on the Strategy for Judicial Reform to 2020 (Resolution 49-NQ/TW) assessed that ‘the law on judicial proceedings still has many shortcomings and is slow to be amended and supplemented’.Footnote 38 Consequently, judicial reform included improving judicial proceedings by enhancing the quality of adversarial debate at trial and clarifying the responsibilities of procedural participants, ensuring greater uniformity of the legal framework and judicial operations as well as strengthening democracy, openness, transparency, and respect for and protection of human rights. In this context, the values of the adversarial system, a hallmark of common lawFootnote 39, have been gradually incorporated into Vietnamese law.
Persuasion
Although persuasion and acculturation are conceptually related, they are distinct concepts. Persuasion depends on conscious belief in a norm or practice,Footnote 40 whereas acculturation requires only the perception that a major reference group accepts a norm or practice. Persuasion involves positive evaluation, whereas acculturation is often implicit.Footnote 41 In the context of legal diffusion, internal factors can drive the need for international integration as described through the acculturation mechanism. In addition, external influences from United Nations organisations’ and other countries through persuasion mechanisms can also play an important role in promoting the acceptance of universal values related to human rights and fair procedures in the legal system of Vietnam. In the area of criminal justice, international push has come from multiple directions. For example, Vietnam’s 2015 criminal law reforms coincided with its second Universal Periodic Review before the United Nations Human Rights Council, and dialogues with Western states on rule of law.Footnote 42 United Nations recommendations, acting as a form of persuasion, together with Vietnam’s desire to project a modern international image led to the rapid integration of adversarial elements into the legal system. This process illustrates how external normative pull and internal status-seeking motivations combined accelerated legislative reform.Footnote 43 United Nations organisations often promote human rights standards by facilitating legal and policy reforms. They do this through various means, including policy advocacy, providing technical assistance, sharing knowledge among stakeholders, and capacity building.Footnote 44 During the process of revising the 2015 Criminal Code and the 2015 Criminal Procedure Code, to support Vietnam’s efforts in complying with international standards, the United Nations conducted research to assess the compatibility of these codes with international human rights conventions.Footnote 45 After the promulgation of these two codes, the United Nations continued to publish a report highlighting provisions inconsistent with Vietnam’s international human rights obligations. Recommendations included measures to uphold the principle of equality of arms, such as adding provisions prohibiting torture, implementing stricter regulations on pre-trial detention, and speeding up the trial process.Footnote 46 In addition, within the framework of bilateral legal cooperation, countries share domestic experiences and promote human rights elements through regular dialogues on human rights, organising educational programs, and sending experts for experience exchanges.Footnote 47 In this context, even single government-led legal aid initiatives can be considered international, if they aim to promote the implementation of international legal standards, including human rights.Footnote 48 Furthermore, global advances in information technology facilitate and promote the process of learning and adopting international values. As individuals become more aware of their human rights, international organisations and foreign countries contribute views and standards to guide Vietnam in better protecting these rights.Footnote 49 The human rights standards are considered the minimum requirements for a state to be able to participate effectively in international relations.Footnote 50 As a result, the human rights discourse is shaped by universal values and principles of liberal constitutionalism.Footnote 51 Without support in terms of experience, and knowledge from international organisations and other countries, as well as shifts in thinking about human rights, international human rights standards in Vietnam will risk deviating from international standards. The Vietnamese Government also recognises that international cooperation and dialogue is necessary to promote and protect human rights and, consequently, supports international exchanges and cooperation to improve the effectiveness of protecting and promoting human rights.Footnote 52
Coercion
While acculturation targets a state’s social identity and relationships, using social reorganisation to achieve conformity with group norms and expectations, coercion targets a state’s material interests and alters its cost-benefit analysis to induce compliance.Footnote 53 Driven by instrumentalism,Footnote 54 states change behaviour because they perceive it to be in their material interest to do so, based on a calculation of costs and benefits associated with rewards and sanctions.Footnote 55 This is evident in international economic and trade cooperation agreements. The EU-Vietnam Comprehensive Partnership and Cooperation AgreementFootnote 56 affirms respect for democratic principles and human rights as essential elements of the agreement. The EU-Vietnam Free Trade Agreement (FTA) also uses an inductive approach to embed international legal norms in Vietnam’s legal system. It required Vietnam to ratify core ILO conventions and improve enforcement.Footnote 57 Under intense pressure to join new-generation FTAs, Vietnam took stepwise action. It ratified ILO C98 (Right to Organise and Collective Bargaining Convention 1949) in 2019 and passed a new Labour Code which broadened the right to organise.Footnote 58 The ILO and United Nations provided technical support to help Vietnam realise this obligation. Here, both persuasion (ILO/United Nations advocacy and training) and coercion (trade deals) play a role in accelerating the internalisation of international standards, thereby reinforcing the process of acculturation. A United Nations report notes the new Labour Code as a major step ‘reflecting the United Nations’ great technical support’Footnote 59 but also implicitly in response to FTA commitments. However, Vietnam has delayed ratifying ILO C87 (Freedom of Association and Protection of the Right to Organise Convention 1948) despite its pledge. These moves reflect Vietnam’s cautious implementation: independent unions remain prohibited (only one official union federation is allowed). Thus, Vietnam’s response to FTA coercion has been partial acceptance rather than outright resistance or wholehearted embrace.
Moreover, the effectiveness of the coercion mechanism in the socialisation of human rights standards lies not only in successfully adopting international standards but also in preventing human rights violations. The provision of a non-execution clause on human rights establishes a form of negative conditionality, posing a risk of material sanctions for breaches of essential elements, such as human rights. These sanctions could involve measures like suspending market access or reducing development aid. For example, the Voluntary Partnership Agreement on Forest Law Enforcement, Governance and Trade between the EU and Vietnam establishes certification mechanisms and funding commitments from the EU and its Member States. Article 23(2)(c) of the agreement states that ‘either Party may suspend the application of this Agreement in the event that the other Party… acts in a way that poses significant risks to the environment, health, safety or security of the people of the Union or Vietnam’. The European Commission has also stated that ‘[the human rights clause] gives the EU a clear legal basis for raising human rights issues and it makes it impossible for both parties to claim that human rights are a purely internal matter’.Footnote 60 This soft form of coercion incentivises the Vietnamese government to balance the need to comply with internationally recognised standards while maintaining economic benefits.Footnote 61
Diffusion manifestation
Although some fundamental concepts of criminal procedure are mentioned in the Vietnamese Constitution, these clauses are still vague and undeveloped. Consequently, the primary source is the Criminal Procedure Code itself. The term ‘equality of arms’ is neither formally recognised nor explicitly used in the Vietnamese legal system. However, the evolution of criminal procedure codes demonstrates an increasing emphasis on the principle of equality between prosecution and defence. While article 20 of the 1988 Criminal Procedure Code and article 19 of the 2003 Criminal Procedure Code each mentioned ‘equality’ between prosecution and defence only once in relation to evidence presentation, claims, and arguments before the court, the 2015 Criminal Procedure Code significantly expanded this concept by incorporating the term ‘equality’ four times throughout its provisions by reaffirming equality in the evidence presentation and evaluation, and in making requests to clarify the objective truth of the case (article 26); requiring courts to create conditions for all parties to exercise their rights and participate in democratic and equal proceedings (article 26); mandating equality in courtroom arrangements (article 257); and obligating judges to facilitate equal argument presentation by all parties in cassation procedures (article 386). This legislative progression reflects a deliberate shift toward more robust procedural equality in Vietnamese criminal justice. This is due to the trend of increasing adversarial elements and protecting human rights to align with international human rights standards. Both aspects are connected. Protecting human rights also serves to strengthen the adversarial elements in legal procedures, and ensuring the adversarial process also helps defend the accused’s rights.
Improve adversarial proceedings
The issue of improving adversarial proceedings has received special attention from Vietnam’s Party and State. The concept of adversarial proceedings first officially appeared in the Party’s Resolutions on judicial reform and was later enshrined in the Constitution and subsequent laws. Resolution 08-NQ/TW dated 2 January 2002 of the Politburo on Some Key Tasks of Judicial Work in the Coming Time (Resolution 08-NQ/TW)Footnote 62 clearly states the task to improve the quality of prosecution by procurators at court sessions, ensure democratic adversarial proceedings with defence lawyers and other participants. Subsequently, Resolution 49-NQ/TW affirmed the need to renew the organisation of court hearings, clarify the position, powers and responsibilities of procedural officers and participants towards ensuring openness, democracy, and solemnity; improve the quality of adversarial proceedings at court hearings, regarding these as a breakthrough stage of judicial activities.
In the current context of globalisation, national legislation tends to reduce local elements, resulting in an integration of inquisitorial and adversarial models in order to meet the increasingly high requirements of crime prevention and control and ensuring human rights. Vietnam’s current procedural system is a hybrid model leaning toward the inquisitorial, rather than a purely traditional inquisitorial system as in the past.Footnote 63 The requirement to strengthen adversarial elements stated in Resolution 08-NQ/TW and Resolution 49-NQ/TW of the Politburo should not be understood as a requirement to change the procedural model, from an inquisitorial model to an adversarial model.Footnote 64 Adversarial proceedings are understood not as a procedural model but as the practice of debate between participants in criminal proceedings, particularly during the trial stage.Footnote 65 Vietnam does not seek a full transition to an adversarial system; instead, it retains core inquisitorial features such as the judge’s active role and the central importance of the case file to remain consistent with the goal of finding objective truth. The gradual adoption of appropriate adversarial elements mainly revolves around ensuring equality between the prosecution and the accused, such as establishing the adversarial principle during the debate in court, presenting evidence, and maximising the conditions under which parties can protect their legitimate rights and interests.
The Party’s viewpoint and policy on adversarial proceedings were institutionalised in the 2013 Constitution. The Constitution prescribes that principles of adversarial proceedings at trials are guaranteed,Footnote 66 whereas previous constitutions did not have this provision. The principle of adversarial proceedings reflects principles of democracy, transparency, and equality in criminal proceedings, especially during the trial phase where both sides can argue their case before a court in accordance with a set of guidelines that permit the defence to submit independent evidence and separate arguments.Footnote 67 The idea of equality of arms, which guarantees that the prosecution and defence can defend their respective positions under the same procedural and evidentiary laws, is probably the most fundamental feature that characterises adversarial aspects of a justice system. In other words, to enhance adversarial elements in any procedural system, it is essential to strengthen guarantees for the principle of equality of arms, and vice versa.
Vietnam has undertaken reforms that changed the conception of the trial phase, giving it a more adversarial character.Footnote 68 The 2014 Law on Organization of People’s Courts prescribes that adversarial principles in trials must be guaranteed. Courts are responsible for ensuring that procedural participants exercise their adversarial rights in trials. The implementation of adversarial principles in trials complies with the provisions of procedural law.Footnote 69 The 2015 Criminal Procedure Code added the principle of adversarial proceedings in trials as one of the fundamental principlesFootnote 70 to concretize the spirit of the 2013 Constitution. This Code also stipulates that the defendant has the right to question the victim, civil plaintiff, and witnesses if the presiding judge agrees. Here, the defendant’s rights in the questioning procedure at trial have been expanded compared to the previous codes. That is, the defendant has the right to directly question other defendants, victims, and participants in the proceedings about the crimes without having to communicate questions through the presiding judge.Footnote 71
To guarantee that both sides of the prosecution and the defence have equal rights to gather and assess evidence, documents, and case details to ascertain objective truth of the case prior to engaging in debate, the principle of equality of arms extends beyond the trial stage and encompasses all proceedings from investigation, prosecution, and trial. The accused must have access to information as soon as it becomes available, to the extent that it does not jeopardise the investigations, to prepare for their case while the prosecution prepares theirs. This is one of the requirements to guarantee that arguments in court become feasible and is also a key component of the adversarial principle. If both sides can use equality of arms as a foundational element for justice, then this argument ought to be credible. It stipulates that the accused must be given the same opportunities to cross-examine prosecution witnesses and summon her own witnesses under the same guidelines as those governing prosecution witnesses. When the accused is imprisoned without legal representation and without resources, it becomes imperative that the right to call witnesses be realised. In such a case, the accused lacks the state’s resources to summon and present witnesses in court. In this sense, if the accused does not have the resources, the court must help her. Only by preserving a certain level of procedural balance between the accused and the prosecution can fairness be achieved. Previously, the collection of evidence was mainly carried out by procedure-conducting agencies. The 2015 Criminal Procedure Code is the first law which stipulates that suspects, defendants, and defence lawyers have the right to present evidence and evaluate evidence collected by the prosecution agency or request the court to collect it:
In the process of initiating, investigating, prosecuting and adjudicating criminal cases, investigators, procurators, other persons having the jurisdiction to conduct criminal procedure, the accused, defenders and other persons participating in criminal procedure are all equal in presenting evidence, assessing evidence, making requests to clarify the objective truth of the cases. Documents and evidence from the case file, brought by the procuracy to the court for trial, must be sufficient and legitimate… All evidence of guilt and innocence, aggravation and mitigation of criminal liabilities, citation of points, sections, or articles in the Criminal Code for determination of defendants’ crimes, sentences, compensations, and handling of proofs, and other facts essential to the lawsuit must be presented, argued, and clarified in court.Footnote 72
Prescribing principles of adversarial proceedings as a fundamental principle in criminal procedure contributes to improving the quality of trials at all court levels, preventing wrongful convictions, and protecting human rights. At the same time, it was said to demonstrate the determination of Party and State in continuing the judicial reform process with the goal of building a transparent, strong, democratic, and solemn judicial system that protects justice, gradually modernises, serves the people, and serves the socialist Vietnamese Fatherland.Footnote 73
In addition, legal procedures must be adhered to when conducting an individual’s inquiry, prosecution, and trial. This highlights the necessity of due process, which is an essential component of the rule of law. The protection of human rights against arbitrary treatment is primarily dependent on open and transparent procedures. The ethos ‘no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law’ in article 9(1) of the ICCPR is upheld by the 2015 Criminal Procedure Code, which emphasises stringent procedural requirements as a basic tenet of criminal proceedings. The Code stipulates that all criminal proceedings must be conducted in accordance with the provisions of this Code. Information on crimes, initiation, investigation, prosecution and trial must not be handled outside the grounds and procedures specified by this Code. Any evidence which is true but not collected according to the procedures defined by this Code has no legal value and cannot be used as a basis for resolving criminal cases.Footnote 74 This regulation aligns with the due process requirement by emphasising the legality of evidence, also known as the principle of exclusion of evidence.Footnote 75 If procedural violations are detected during the proceedings, evidence shall become void,Footnote 76 records shall be returned for supplementary investigation,Footnote 77 judgments shall be annulled for retrial during appellate proceedings,Footnote 78 and in the cassation procedure.Footnote 79
Improve accused’s human rights
Recognising the inherent inequality between the accuser and the accused, where the accuser holds a superior position in terms of resources and power, it is crucial to address the potential abuse of state power that can overwhelm the accused or lead to violations of legal proceedings. Therefore, one of the measures to restore balance and ensure equality of arms is to strengthen the rights and protection measures for the accused.
In recent years, the amendment of criminal procedural law has paid more attention to defining the task of protecting human rights in criminal justice activities. Therefore, investigative measures have been prescribed not only to clarify the truth but also to expand and ensure human rights in different fields. In particular, the accused is guaranteed the inviolable rights to body integrity, protection of their life, health, honour, dignity, and personal property. The 2015 Criminal Procedure Code established various new measures to help competent procedural bodies innovate their thinking and practical actions on human rights protection to prevent wrongful convictions. The clearest evidence is that nineteen out of twenty-seven fundamental principles prescribed in this Code contain content to guarantee and protect the human rights of the accused and procedural participants. At the same time, there is increasing expansion and emphasis on certain rights. Below is an analysis of some typical rights.
Right to defence
The full and effective exercise of the right to defence contributes to realising the principle of equality of arms by balancing resources and capabilities between the two sides, creating conditions for the accused to counterbalance and defend their stance. Vietnamese regulations on the right to defence have been improved in accordance with the spirit of this principle, ensuring timely implementation without unreasonable restrictions. The 2013 Constitution solidifies the accused’s right to defence as a fundamental human right, broadening the scope to encompass not only suspects and defendants but also arrestees and detainees as subjects of this right. To concretise these provisions, the 2015 Criminal Procedure Code dedicates an entire chapter to ‘defence’, laying the groundwork for the effective exercise of this right. It elaborates on the concept of defender, broadening the pool of individuals who can participate as defender, including people’s advocates, legal representatives, and legal assistants, thereby diversifying the avenues through which individuals can access legal aid. The Code allows defender to engage from the moment the arrested person is present at the investigation agency’s headquarters. This grants the defender the right to intervene early in the proceedings, safeguarding the accused’s rights from the initiation of the investigative process.
The rights and obligations of defender are also explicitly outlined, with the 2015 Criminal Procedure Code introducing new rights such as the right to question the accused, be present during statements, and collect evidence. By incorporating these adjustments, the 2015 Criminal Procedure Code establishes mechanisms that empower individuals with the right to defence and their defenders, ensuring equality in evidence collection, opinion expression, and requests during proceedings. This comprehensive approach binds procedural agencies to uphold the right to defence, fostering fair and just criminal investigations, prosecutions, and adjudications, thus preventing miscarriages of justice.
Right to presumption of innocence
In addition to being the accused’s fundamental right, the presumption of innocence is a concrete manifestation of the equality of arms principle. By imposing the burden of proof on the prosecution and using the principle of explaining uncertainties and contradictions in the accused’s favour to shield them from adverse circumstances, this levels the playing field between the two parties. In keeping with the spirit of the equality of arms principle, strict enforcement of this right helps to create an impartial procedural environment that allows all parties to advocate equally throughout proceedings.
In chapter II on Human Rights, Basic Rights, and Obligations of Citizens, the 2013 Constitution for the first time in Vietnam’s constitutional history, lays out the following provisions: ‘Until a person is proven guilty in accordance with the legal process and the judge’s verdict of guilt has taken effect, they are presumed innocent’.Footnote 80 This is what the presumption of innocence idea is all about. The 2015 Criminal Procedure Code specifies the following content to uphold the Constitution:
The burden of proof belongs to criminal procedural agencies. The accused has the right but is not required to prove their innocence; they can use this right to defend themselves but do not have the obligation to prove it. The procedural agencies must clarify these doubts. If it is not possible to clarify the doubt, the unclear evidence should be interpreted in favour of the accused. When it is insufficient and impossible to clarify the grounds for accusation or conviction, the procedural agency or person must conclude that the accused is not guilty.Footnote 81
This regulation counters the tendency to accuse with the mindset of ‘better to be wrong than to let go,’Footnote 82 when there is ambiguity in determining the criminal liability and the circumstances related to the crime. These doubts must be addressed to the advantage of the accused. This represents a crucial component of the presumption of innocence, which effectively protects the accused’s legal safety by representing the human aspect of democratic criminal processes and the rule of law.Footnote 83
Right to remain silent
The 2013 Constitution, the 2014 Law on Organization of the People’s Court, the 2014 Law on Organization of the People’s Procuracy, the 2015 Criminal Code, and the 2015 Criminal Procedure Code all recognise the accused’s right to silence, even though it is not specifically mentioned as an independent right. Regarding the burden of proof and establishing the truth of the case, the 2015 Criminal Procedure Code stipulates that the procedural agencies bear the responsibility of proving the offense.Footnote 84 The accused is not compelled to testify against themselves or confess to their guilt; they have the right, but not the duty, to establish their innocence.Footnote 85 At trial, the defendant has the right to testify, to present opinions, and not to be forced to testify against themselves or admit guilt.Footnote 86 If a defendant does not respond to queries, the trial panel, procurators, and defenders will interrogate other people and review case-related exhibits and papers.Footnote 87 These regulations help to balance the relationship between the prosecuting agency and the accused by exempting the accused from the obligation to declare and prove. There have been landmark cases related to the right to remain silent. On 16 May 2018, cases of ‘Lack of responsibility causing serious consequences’ and ‘Inadvertently causing death’ that occurred at Hoa Binh Provincial General Hospital, were brought to trial.Footnote 88 The defendant in the case was Hoang Cong Luong, a thirty-two year old doctor in the intensive care unit of the Hoa Binh Provincial General Hospital. He was prosecuted for the crime of irresponsibility causing serious consequences. During the questioning, Luong asked to remain silent and authorised a lawyer to prove his innocence. Previously, on 22 June 2017, the People’s Court of Ho Chi Minh City tried the case of Truong Ho Phuong Nga on the crime of fraudulent appropriation of property. At the questioning session, when answering a question from a representative of the Procuracy, Phuong Nga said: ‘The defendant is not obliged to prove the crime, this obligation belongs to the procurator’. During the trial, Phuong Nga resolutely used the right to remain silent to not testify against herself or admit any guilt.Footnote 89 These cases have shown that awareness of the right to remain silent has increased and accused actively use it to protect themselves.
Freedom from torture
Vietnam has implemented several legislative changes to guarantee adherence to the United Nations Convention against TortureFootnote 90 in 2015. The prevention of abuse of power by procedural agencies, the protection of human rights, and the preservation of the balance of power between the parties are all achieved through regulations that forbid torture, forced confessions, the requirement that audio and video recordings of testimony sessions be made, and the strict handling of those who engage in torture. Any actions that violate the legitimate rights and interests of agencies, organisations, and individuals are forbidden, including coercing people into testifying against their will, using corporal punishment, torturing them, or subjecting them to any cruel, inhuman, or humiliating treatment.Footnote 91 If procedural officials engage in such behaviour, their titles may be revoked,Footnote 92 and can be subject to criminal liabilities under the Criminal Code.Footnote 93 The 2014 Law on Temporary Custody and Detention also stipulates the principle of ensuring humanity, which forbids torture, coercion, physical punishment, or any other treatment that violates the rights and interests of the person in temporary detention or custody.Footnote 94 Furthermore, the 2015 Criminal Procedure Code includes clauses that provide the accused’s protection through procedural guarantees, such as mandatory audio or video recording during the accused’s interrogation;Footnote 95 mandatory information of the defence attorney beforehand of the time and location of the activities so that they can attend;Footnote 96 Procurators are required to interrogate suspects to evaluate case evidence or verify allegations of torture and forced confessions in specific circumstances, namely, when suspects assert their innocence, complain of investigative misconduct, or when there are indications of legal violations.Footnote 97 In such instances, the trial panel shall decide whether to play audio or video recordings of the interrogation in court.Footnote 98 At the same time, abusing positions and powers to commit crimes is considered an aggravating circumstance.Footnote 99
Impediments
While Vietnam has acquired new insights through intercultural exchange and the adaptation of global values, its socialist past continues to influence present experiences.Footnote 100 Therefore, although recognised in international law, and arguably applicable in any domestic procedural model, the full realisation of the principle of equality of arms in Vietnam’s socialist criminal justice system is shaped by distinctive factors.
Collectivism
During the approximately thousand-year Chinese rule (111 BC-938 AD), Vietnamese legal principles were significantly shaped by the Chinese Confucian legalist tradition, an influence that persisted beyond the extended period of Chinese dominance. In both Vietnam and China, emperors emphasised virtue-based governance while utilising legal rules to promote positive conduct. Both virtue-based governance and legal regulations upheld the supremacy of the state.Footnote 101 Following the 1945 August Revolution, the Confucian worldview began to give way to Marxism-Leninism. However, the influence of Confucianism continued to exist, because it had always been intertwined with the Vietnamese Legalist philosophical tradition. Therefore, Vietnamese law is classified as a socialist legal system that combines elements of Confucian and Legalist philosophy.Footnote 102
The interaction between the private and the public, as well as between the individual and the communal, has been influenced by Confucianism for more than 2,000 years.Footnote 103 The concept of the wulun (Five Relationships) exemplifies the hierarchical system in Confucian-influenced states. By adopting the concept of ren (human) and li (rituals), community members behave in a proper manner by performing duties associated with their roles through a complex network.Footnote 104 Each individual has a limited freedom to act outside their sphere.Footnote 105 Confucianism views humans as social beings, part of a larger community and responsible for contributing to the common good of society and the state. Therefore, individuals are considered as ‘potential resources for the state’s ends’.Footnote 106 Similarly, Marxist view of humans as a ‘species’Footnote 107 holds that each individual is intimately linked to the society, with their rights dependent on this social context for their realisation.Footnote 108 Marxist philosophy posits that through education, communist morality should become so deeply ingrained in the masses that social pressure supplants law as the primary means of social control.Footnote 109
One apparent influence of socialism and Confucianism in the Vietnamese legal system can be seen in the 2013 Constitution, which emphasises that citizens have rights associated with their duties and responsibilities towards the country and society.Footnote 110 The 2015 Criminal Procedure Code also provides that its goal is to educate everyone to be conscious of following the law.Footnote 111 Punishment is not only aimed at punishing the person or legal entity that commits a crime, but also meant to educate the offender and others to be conscious of following the law and the rules of life.Footnote 112 This function of punishment is considered a common trait shared by all socialist jurisdictions.Footnote 113 With the aim to educate both defendants and society, judges in socialist criminal procedures are expected to be impartial but not detached, pursuing outcomes that align with socialist principles.Footnote 114 Socialist trials have to uncover the root causes of social conflicts that lead to crime, thereby promoting public morality and addressing societal issues. Each case is analysed in its social context to identify disturbances to socialist harmony. Resolutions often involve engaging individuals and collectives rather than relying solely on judicial proceedings. When determining a sentence, the court shall decide based on not only the laws, but also the offender’s personal characteristics and aggravating or mitigating circumstances.Footnote 115
The ideological nature of criminal procedure is evident both in political statements contained in the legislation and in the values it promotes or ignores. Criminal procedural law and agencies often prioritise the community’s common good over individual rights. The legal autonomy of the individual is expressed vaguely, since the main purpose of Vietnamese procedural law is to promote a collectivist society and maintain socialist morality rather than to resolve individual disputes. The 2015 Criminal Procedure Code also clearly states that its goal is to maintain a socialist public order.Footnote 116 Consequently, despite the recognition of individuality and personal interests in the context of modern criminal proceedings, these aspects encounter challenges in being duly respected and fully realised in the practical resolution of criminal cases. Suspects often experience a diminished sense of self-worth and adopt a submissive stance toward procedural agencies. The above-mentioned elements enhance the flexibility and effectiveness of procedural agencies in tackling criminal activities, but also highlight the gap between those involved in the proceedings and the procedural agencies.Footnote 117
Crime control model
Packer contrasted a due process model with a crime control model of criminal justice policy. The former is a liberal ideal that emphasises formal legal procedures that limit public power to protect the individual. The latter, by contrast, emphasises the repression of crime in the interest of the individual freedom of law-abiding citizens whose everyday life is threatened by lawbreakers.Footnote 118 It is clear that socialist societies come closer to the crime control model. However, crime is suppressed to further the development of socialism rather than individual freedom.Footnote 119 In the socialist system, a criminal act is characterised as a ‘socially dangerous act’ that disrupts the order created by the working class and peasants in the shift toward communism.Footnote 120 Since socialism is supposed to eliminate the causes of crime and antisocial conducts, criminal activity raises both pragmatic and ideological issues because it undermines the system’s legitimacy.Footnote 121 Criminals who undermine the system and disturb societal order are not tolerated, and it is justified to punish them with crime control measures, and the courts and other legal institutions have an obligation to ensure socialist values.Footnote 122 Similarly, the Vietnamese criminal justice system views crime as a dangerous behaviour for society.Footnote 123 Crime is not just a matter of private affairs between individuals; it also violates the social order established by the state. When a crime occurs, it violates public order and social interests, making the state responsible for resolving it. A core principle of the Criminal Procedure Code is the prompt and comprehensive detection of crimes. Competent authorities must initiate criminal proceedings upon discovery of a crime and take necessary measures to identify the crime and deal with the offender.Footnote 124 The fact that the state is the main subject of initiation and handling criminal cases also demonstrates its social responsibility. Becoming a responsibility, the state (through authorised agencies within its machinery) must initiate and handle criminal cases and offenders − this is no longer an arbitrary activity. Initiating a criminal case is an obligation, a requirement that must be carried out actively, comprehensively, and timely; otherwise, it will lead to a situation of allowing crimes to go unchecked, and the interests of the state, society, and individuals will not be guaranteed. Prioritising crime control to achieve the ultimate goal of criminal proceedings often makes the protection of citizens’ rights a secondary consideration during the prosecution of crimes. Specifically, this is shown in the 2015 Criminal Code which prioritises the protection of national sovereignty, security of the country, and the socialist regime over human rights and civil rights.Footnote 125 Therefore, Vietnam inevitably foregrounds the goal of protecting the socialist regime. This emphasis on crime repression often results in procedural advantages for the prosecution, as the system is designed to efficiently detect and punish crime rather than ensuring a balanced adversarial process, which can lead to an imbalance in procedural opportunities between the prosecution (representing the state) and the defence (the accused). Meanwhile, as participants in the proceedings rather than primary agents, the defenders’ role is inherently constrained. Defenders have limited access to case files. They may only view documents relevant to the defence, and the documents they collected may only be considered as evidence if they are submitted to and certified by the competent authorities.Footnote 126
Substantive truth doctrine
The goal of both adversarial and inquisitorial criminal procedure models is to discover the truth of a case. However, the former seeks legal truth, while the latter aims for objective truth.Footnote 127 The methods of truth-finding also differ. The adversarial model relies on the initiative of both parties in collecting evidence, focusing on debate between the parties at the trial with the judge playing a passive role.Footnote 128 The inquisitorial model, on the other hand, relies on the initiative and coverage of state agencies, pre-trial investigation records, giving the court more power to control evidence and proactively question.Footnote 129 Although the adversarial model’s emphasis on ‘legal truth’ upholds procedural justice and limits the authority of the state, factual accuracy is not always guaranteed. On the flip side, the inquisitorial search for objective truth may be consistent with the principles of factual justice; it could compromise due process protections. The issue is not to choose which model is better, but to recognise the tension between truth-seeking and ensuring fairness in each specific context. In Vietnam’s context, the principle of establishing objective truth is a cornerstone of criminal proceedings. Competent authorities are tasked with employing lawful measures to objectively, comprehensively, and adequately determine the truth of the case, including evidence of guilt and innocence, as well as aggravating and mitigating circumstances.Footnote 130 Criminal procedural law entrusts these authorities with full control over the criminal procedure process, including the collection and assessment of evidence. Agencies involved in later stages rely on earlier findings and verify their accuracy and legality.Footnote 131 From the initiation of a case, the investigation agency establishes a case dossier, which is central to subsequent proceedings.Footnote 132 When the investigation concludes, the dossier is sent to the procuracy to continue the investigation and eventually forward the case file to the court for trial. The judge also actively studies case files, poses questions, and verifies evidence, reflecting the inquisitorial model’s interrogatory features. This focus on substance over due process allows procedural irregularities to be overlooked if the crime is proven. This approach was evident in the controversial and well-known Ho Duy Hai case. In this case, the defendant was sentenced to death in 2008 for allegedly killing two female postal workers in Long An province. The sentence was based largely on Hai’s confession. The Supreme People’s Procuracy determined that the procedural agencies committed various serious procedural violations, such as not requesting an examination of the blood stains immediately after collection but waiting four months; examining the crime scene but not confiscating important evidence bearing traces of the crime; not determining the time of death of the victims. Furthermore, some minutes of the testimony and interrogation were corrected but did not have the signature of confirmation from the declarant. Most notably, Hai’s first statement, in which he did not admit guilt, was not included in the case file but, together with certain witness statements were filed in the archives of the investigation agency.Footnote 133 Despite a recommendation for a review by the Supreme People’s Procuracy and a 2015 supervision report by the National Assembly’s Judicial Committee, the Supreme People’s Court’s Judicial Council upheld the sentence in 2020, claiming that procedural violations in crime scene examination and evidence seizure were insufficient to necessitate a re-investigation.Footnote 134 In June 2020, Vietnam’s National Assembly took the rare step of questioning the court verdict at a meeting of the National Assembly, and Chief Judge Nguyen Hoa Binh reaffirmed the death sentence, citing Hai’s 25 written statements admitting his guilt.Footnote 135
Another landmark case is the case of Huynh Van Nen, who was convicted in two murder cases in 1993 and 1998 in Binh Thuan province. Nen claimed that, in both cases, he was tortured during the investigation and forced to confess. It was not until 2015, when the real perpetrator in one of the two cases surrendered, that Nen was exonerated and released after nearly seventeen years of wrongful imprisonment. He later received a public apology and compensation from the state.Footnote 136 The case of Nguyen Thanh Chan followed a similar course. Sentenced to life in prison in 2004 for a murder in Bac Giang, Chan said he was forced to confess and was not given proper protection for his right to defence. After ten years, the real perpetrator surrendered, leading to his exoneration and release in 2014.Footnote 137 Both of these cases exposed the failure of the procedural agencies to verify the legality and accuracy of confessions – especially when the defendants alleged that they were forced to confess. In 2015, the National Assembly’s Standing Committee’s supervision report about Miscarriages of Justice in the Application of Criminal Law, Criminal Procedure Law, and Compensation for Wrongfully Convicted Persons in Criminal Proceedings acknowledged that there were instances of coercive interrogation and torture during investigations, constituting serious legal violations and infringements of human rights, including the rights of the accused. In some cases, these practices were the direct cause of wrongful convictions.Footnote 138
Cases such as Ho Duy Hai, Huynh Van Nen, and Nguyen Thanh Chan show that the Vietnamese judicial model – despite reforms in human rights and the adversarial principle – is still strongly influenced by the ‘objective truth-seeking’ mindset of the inquisitorial model. In the name of objective truth, the collection of evidence and testimony might be done at the cost of forgoing due process guarantees. In a procedural environment where the investigation file is considered central and the testimony collected by the investigating and procuratorate agencies has default value, procedural rights such as the right to remain silent, and the right to defence might be set aside. The sidelining of procedural safeguards undermines the principle of equality of arms between the prosecution and defence. In practice, this imbalance creates a paradox: while the system proclaims a commitment to substantive truth, it may tolerate or even facilitate the use of confessions obtained under duress to be treated as decisive, while constraining the defence’s capacity to contest such evidence. As such, the above cases reflect a deep conflict between the ‘objective truth’ model and the principle of procedural fairness.
Blurred separation of function
Socialist law is underpinned by a fundamentally different normative commitment to ‘democratic centralism’ compared to the separation of powers adopted in many civil law countries.Footnote 139 In Marxist theory, the socialist state is conceptualised as:
a transitional arrangement whose sole purpose is to prepare society for full communist society, specifically the general orchestration of the national movement towards the stateless and lawless society known as communism. To achieve this, all functional subdivisions of the state must necessarily work together.Footnote 140
In the Socialist Republic of Vietnam, the state apparatus is organised according to the principle of centralised power. State power is unified, with centralised assignment, coordination and supervision among state agencies exercising legislative, executive, and judicial powers.Footnote 141 Organising the state apparatus according to the principle of the separation of powers, with the legislative, executive, and judicial branches counterbalancing and restraining each other, is considered contradictory to the essence of people’s power.Footnote 142 Therefore, the exercise of judicial power in the socialist rule of law state of Vietnam also aims to ensure the unity of state power; this unity is understood as all powers (including judicial power) belonging to the people. In the criminal justice system, three essential components — the investigative police, the procuracies, and the courts — form the foundation for combating criminal activities.Footnote 143 They share a relationship as procedure-conducting bodies of the state tasked with pursuing criminal liability against the accused. Under this framework, investigative agencies are responsible for identifying crimes and criminals. The procuracy exercises prosecution rights and supervises judicial activities, while the court wields judicial power. To handle complex criminal cases, a joint meeting mechanism among the leaders of these three procedure-conducting agencies is often established as an ad-hoc steering committee, known as the ‘three-internal-affairs round-table’.Footnote 144 This serves as the most important pillar in investigation, prosecution, and trial, while defenders and accused persons have a weak position, dependent on the procedure-conducting agency. Consequently, the functions between these agencies are not distinctly separated, and a single entity may be assigned to perform two procedural functions. The investigation agency and the procurator’s office are the accusing entities, with the procuracy playing a significant role in the investigative stage by directly conducting investigations and directing investigative activities. The court may establish the objective truth of the case by actively examining case files, questioning procedural participants, and guiding parties gathering evidence.
Regarding judicial independence, in countries that organise state power according to the principle of the separation of powers, the court acts as an arbitrator between the prosecution and the defence, without cooperation with either side in judicial proceedings. The 2013 Constitution first declared that People’s Courts ‘exercise judicial power’. This mandate emphasises the Court’s essential role in ensuring justice through independent trials, requiring judges and assessors to adhere solely to the law.Footnote 145 Vietnam adopted the language of ‘independent judiciary’ and even introduced adversarial proceedings into courtrooms. Domestic commentators praised these steps as raising the courts’ ‘prestige’ and learning ‘rationalities of the…adversarial model’.Footnote 146 Despite this formal recognition, the concept of judicial independence has yet to be fully achieved in practice. In a unified political system like Vietnam’s, judicial power is a component of political power. The Communist Party of Vietnam leads the judicial power.Footnote 147 Courts, as entities that exercise judicial authority, are situated inside a political institution in which the agencies that exercise legislative, executive, and judicial power are assigned, coordinated, and supervised rather than having their powers separated. The court’s role in controlling and balancing the authority of agencies that exercise legislative and executive power is insufficient. Vietnamese judges are not yet important leading figures like their counterparts in other countries under the inquisitorial system because their activities are monitored or controlled by the procuracy, where judicial officials hold prosecutorial power in trials over which they preside. They share a similar background in training and in fact, there are frequent transfers of leadership between the procuracy and the court.Footnote 148 This rotation between judicial agencies further illustrates the lack of distinction between roles. The United Nations Human Rights Committee’s 2019 Concluding Observations also explicitly expressed concerns regarding the political influence on the judiciary, which undermines their independence, and urged Vietnam to ensure judges and prosecutors can operate ‘without interference’.Footnote 149
The close and overlapping relationship between procedural agencies affects the way criminal cases are handled in the criminal justice system. Decisions on the prosecution of cases and defendants are issued when there is relatively clear evidence of guilt. There are relatively few (discovered) wrongful convictions, and only a handful of cases are suspended following prosecution. This situation stems from a prioritisation of crime control, where procedural efficiency is focused primarily on securing criminal convictions. It also reflects, to some extent, the high level of consensus between courts and investigative and procuracy agencies, and the lack of independence of the court itself.Footnote 150 In cases of insufficient or lacking evidence, depending on the extent, the procuracy may decide not to prosecute or to dismiss the case immediately but gather evidence itself or return case files to the investigation agency for additional evidence. Similarly, facing such cases, the court may not decide to acquit or dismiss the case immediately but return case files to the procuracy for additional evidence. The mechanism of returning case files may play an important role in assisting the prosecution not to let criminals slip through the net. However, is not fair to the accused and, to some extent, does not fully uphold the presumption of innocence.
Supervision role of procuracy
The procuracy is responsible for prosecuting crimes while simultaneously supervising the activities of the state agencies as part of its regular duties. It is for these roles that the procuracy is considered a bastion of socialist legality.Footnote 151 This system, together with various procedural functions, represents a significant consolidation of power. The unique socialist ideology, contrary to the principle of separation of powers, justified this concentration. Therefore, the public prosecutor in socialism is considered the most powerful public prosecutorial agency due to its supervisory role.Footnote 152
The history of the Soviet procuracy dates back to the chaos following the 1917 Revolution, when it was established to ensure uniform implementation of central directives and to control local courts that were influenced by Soviet councils.Footnote 153 Vietnam’s adoption of this model in the late 1950s also stemmed from a similar need: to unify the decentralised local administrative system and compensate for the weak capacity of the judiciary.Footnote 154 According to this model, the procuracy is under the direct leadership of the National Assembly, organised vertically from the central to local levels, and is independent of administrative agencies at the same level.Footnote 155 In addition to the goal of ensuring unified legality, in the debates on constitutional reform in the 2010s, the procuracy was also emphasised for its role in protecting human rights and preventing wrongful convictions, due to its presence at all stages of the proceedings and its professional capacity to handle cases quickly.Footnote 156
Specifically, Vietnam’s procuracy’s judicial activity oversight is to supervise the legality of actions, decisions of agencies, organisations, and individuals in judicial activities, carried out immediately upon receiving and resolving reports, denunciations of crimes, proposals for prosecution, and throughout the process of resolving criminal cases to ensure objectivity and the truth of the case.Footnote 157 The supervisory role allows the procuracy to participate in all important stages of the criminal proceedings, including initiating criminal cases, investigating, trying, executing criminal sentences, reviewing death penalty cases, implementing coercive measures, and compensating victims to ensure the legality of the activities of criminal justice agencies.Footnote 158 The criminal procedure outlines various measures for the procuracy to carry out its supervisory function over investigative activities. Procurators have the authority to issue investigation requests with predetermined content for investigative agencies to follow and issue recommendations, objections, and requests to rectify legal violations committed by investigative agencies. Despite disagreements, certain powers of the procuracy, such as approving indictments, managing preventive and coercive measures, initiating criminal cases, and appointing or changing investigative personnel, must be adhered to. The procuracy also performs supervisory functions over the trial activities of the court in general and the trial council in particular to ensure the proper application of trial procedures by the trial council, avoiding errors that could adversely affect the rights of participants in legal proceedings. For instance, if the trial council overlooks fundamental rights and obligations of a participant in the legal proceedings or omits questions about a person or issue that needs examination, the procurator has the right to request action. The procurator also has the authority to request changes to members of the trial council and other individuals conducting legal proceedings, as well as the right to request a trial postponement. The procuracy also has the authority to protest or petition against rulings (e.g. via cassation or reopening proceedings) if legal errors are found as shown in the example of the Ho Duy Hai cases above. Official reports show that the procuracy has actively identified irregularities in criminal cases.Footnote 159
While international standards emphasise the importance of maintaining a clear distinction between the functions of the prosecutor and the judge,Footnote 160 in Vietnam’s criminal justice system, court proceedings are subjected to the procuracy’s supervision,Footnote 161 which can exert pressure on the trial council and influence court hearings. In addition, the trial council often has a natural inclination to favour the procurator due to the cooperative and mutually controlling relationship between the court and the procuracy.Footnote 162 The procurator, together with the judge, is considered a conductor in the proceedings, placing the procurator, representing the prosecution, on an equal footing with the judge. This creates an imbalance between the prosecution and the defence in achieving fair outcomes.Footnote 163 With the judge and the court as allies, the procurator almost certainly ensures victory. In other words, the defence must confront not only the procurator but also the entire criminal justice system. Thus, the combination of the supervisory and prosecutorial roles in one agency has raised concerns about the procuracy’s ability to ensure the principle of equality of arms and coordinate its duties with other procedural bodies. This shows the potential contradiction between the requirement to protect the unity of state power, according to the principle of democratic centralism, on the one hand, and the requirement to enhance adversarial proceedings and judicial independence according to modern rule of law standards, on the other. Criticisms focused on the procuracy’s overly influential position, which was likened to a ‘national inspector general’.Footnote 164 Former Deputy Minister of Justice Hoang The Lien emphasised that assigning the procuracy both tasks of prosecution and supervision in court causes inequality between the procurator and the defence lawyer. If the court is the centre of the trial, there cannot be any agency ‘standing above’ it.Footnote 165 To address this problem, Resolution 49-NQ/TW once proposed to abolish the procuracy’s judicial supervisory role. This proposed change, to a certain extent, is associated with a shift towards adversarial proceedings, ultimately moving toward equality of arms between defence lawyers and procurators.Footnote 166 However, this proposal has so far not been implemented. The task of supervising judicial activities is still considered a very urgent task and ‘cannot be assigned to other agencies’.Footnote 167 On 9 November 2022, the thirteenth Party Central Committee issued Resolution 27-NQ/TW on continuing to build and perfect the Socialist Republic of Vietnam’s rule of law state. This resolution aims to improve legal institutions so the procuracy can effectively prosecute and supervise judicial activities, while ensuring that such supervision remains consistent with the independence of judges and jurors.Footnote 168 Institutional design solutions are needed to allow the supervisory role of the procuracy to go hand in hand with strengthening a fair and effective judiciary, and ensure human rights. The specific measures so far, however, are mainly proposals to enhance the political and moral responsibility of the staff and procurators in performing their duties.Footnote 169
Conclusion
This article has analysed the diffusion of the equality of arms principle and the factors influencing its socialisation in the Vietnamese socialist criminal justice system. The findings of this article have twofold implications. For the literature on diffusion of law, and, second, for ensuring procedural fairness in Vietnam and other socialist jurisdictions or those with similar institutional characteristics. First, for diffusion of law, the article shows that one common feature of the spread of international values is the interplay of local and global factors. Both in and out forces interact during the diffusing process. Cultural and legal traditions can create a solid foundation that resists rapid change resulting from external influences. In the case of the equality of arms principle, the article shows that in the context of the Vietnamese socialist criminal justice system, the main factors influencing its implementation include collectivism, the crime control model, and the doctrine of seeking objective truth. Another important factor is democratic centralism in the organisational structure of, and coordination between, procedural agencies in Vietnam, specifically the special role of the procuracy in judicial supervision. These findings are valuable for examining the internalisation of this principle in jurisdictions with similar characteristics. At the same time, every principle or norm may face their own set of influencing factors in different jurisdictions. Therefore, further research could investigate how other procedural guarantees, such as the presumption of innocence or the right to silence, interact with different jurisdiction’s legal ideology and procedural practices.
Secondly, regarding the prospects for procedural fairness in socialist regimes, the pursuit of justice and truth necessitates the principle of equality of arms. Only when opposing parties are able to formulate and make their strongest arguments from positions of approximate equality, does the adversarial process run well.Footnote 170 As analysed above, a state’s procedural model greatly impacts the implementation of the principle of procedural fairness in general, and the principle of equality of arms in particular. Vietnam has discussed and implemented certain reforms regarding its procedural model, including measures to assign roles to agencies according to the division of functions in criminal proceedings (the prosecution, the defence, and the adjudication), establish measures to ensure equality between prosecution and defence, and remove any court authorities that interfere with the adjudication function.Footnote 171 However, in practice, the results of these reforms have stopped at the level of gradually installing some adversarial elements into the system as the system remains anchored by inquisitorial foundations. Specifically, the heavy reliance on pre-trial case files as the primary basis for judgments, and the continued coordination between the judiciary and the procuracy often undermine the procedural parity required for a truly adversarial trial. The policy of strengthening adversarial proceedings aims at ensuring objective and impartial case resolution, guaranteeing accurate prosecution and sentencing. This policy does not entirely abandon the inquisitorial model but tries to balance the two approaches. Ultimately, what matters is finding the right balance between the search for truth, the protection of rights, and the effectiveness of institutional safeguards in preventing abuse and error. Up to now, these core issues have not been fundamentally reformed in Vietnam, which affects the reception of the principle of equality of arms. The socialist criminal justice system considers crime control as a priority task; the accused is still considered a passive subject; the procuracy and other agencies still seem to be an alliance; and the court still cannot be completely independent. Since the system’s fundamental ideals and cultural and legal traditions constitute a strong foundation, outside views and experiences cannot quickly alter the system’s deeply ingrained custom. Ultimately, the actual realisation of the principle of equality of arms in Vietnam’s criminal justice system is more dependent on procedural participants’ readiness and willingness to participate voluntarily in open and fair proceedings than it is on the form and content of legislation.
Acknowledgements
Legal Officer at the Ministry of Justice, Vietnam, and PhD Candidate at the Graduate School of Law, Nagoya University. I am grateful to Professor Bui Ngoc Son (University of Oxford) for inspiring my research interest and providing suggestions to improve this study. My thanks also go to Professor Fujimoto Akira and Professor Matsuura Joshiharu (Nagoya University) for sharing their opinions and Associate Professor Kyle Nuske (Nagoya University) for English proofreading. I am also grateful to the two anonymous reviewers for their insightful comments.
Competing interests
The author declares none.
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