Ensuring adversary at the criminal trial of first instance under the provisions of the Russian Federation’s Criminal Procedure Code and experience for Vietnam



Ensuring adversary in proceedings are basic principles not only in the countries of the Common Law legal family but also in the procedural model of almost every country in the world. Criminal proceedings of the Russian Federation have many similarities with criminal proceedings of Vietnam, which bring basic factors of Adversarial model and are characterized by Inquisitorial model. This Article clarifies the characteristics of the principle of adversary in trial of Russia’s criminal proceedings, explains the difference compared with Vietnam’s criminal proceedings, and suggests some experience in order to improve the Vietnamese Criminal Procedure Code (CrPC).

Keywords : adversary, criminal proceedings, the criminal trial of first instance, basic principle.

The judicial reform process of the Russian Federation brings many valuable reference experiences for Vietnam in bringing elements of adversary into criminal justice. The Russian Federation CrPC 2001 shows the revolutionary and fundamental changes of the Russian criminal justice model from an inquisitorial system that tends to be biased towards the prosecution to an adversary system that is based on equality and fairness, protecting individual rights and empowering jurors who are normal citizens to decide whether the defendant is guilty or not guilty in serious criminal cases. It can be affirmed that « criminal proceedings of Russian Federation carry the basic elements of the adversarial system and the characteristics of the inquisitorial system » (Procuracy University, 2011). Therefore, criminal procedure of the Russian Federation attaches special importance to the principle of adversary in the entire criminal proceedings. During the trial stage in Russian Federation’s criminal proceedings, the adversary takes place most clearly. On the other hand, in Vietnam, the Communist Party's policy of ensuring adversary in the trial process is shown in Resolution No. 08-NQ/TW dated January 2, 2002 and Resolution No. 49-NQ/TW. June 2, 2005. Accordingly, «... judgment of the court must be based primarily on the results of the adversary at the court hearing, on the basis of a full and comprehensive consideration of evidences and opinions of procurators, defense counsels, defendant... to make legal, convincing judgments and decisions within the prescribed time limit,» and «improving the quality of the judiciary's operations, the quality of the adversary at all trial court» . The 2015 CrPC has affirmed that « adversary in the trial is guaranteed » is a basic principle of Vietnamese criminal justice. Nonetheless, there are many inconsistent understandings of adversary in Vietnam. Therefore, certain provisions of Vietnam’s CrPC regarding the first-instance criminal trial are not consistent with the spirit of the adversary principle. This Article aims to review and compare a number of provisions enshrined mainly in Vietnam’s CrPC and Russian Federation’s CrPC on adversary in first instance criminal trial. Based upon this, the authors make concrete recommendations to improve Vietnamese criminal procedure law for ensuring adversary during the trial stage.

Guarantee adversary at the first instance trial in the CrPC of the Russian Federation

General provisions on adjudication

The conditions ensuring the adversarial process in Art. 15 of the CrPC of the Russian Federation is best demonstrated through the first instance trial.

Firstly, according to Art. 240, Art. 241 and Art. 244 of the Russian Federation’s CrPC, to ensure the principle of adversary, the trial must be « direct, verbal, open and equal» . « Compliance with the orality and immediacy of the trial is an indispensable prerequisite for the independence of the Judicial Investigation of the circumstances of the case in compliance with the adversarial principle » (Sklizkov, 2007). The examination of evidence must be conducted directly at the court hearing unless the case is conducted according to special trial procedures. The measure of announcing testimony at the hearing in Art. 276 and Art. 281 of the Russian Federation’s CrPC is only a measure to assist the adversarial process to clarify the conflicts between the testimony of the parties or to provide additional evidence, not a measure to replace testimony of the absent person. In the absence of the defendant, the victim, or the witness, the court does not always announce testimony at the court hearing, but only in clearly defined cases in the CrPC. This regulation ensures that all testimonies and evidence will be publicly reviewed at the hearing. The publicity of the Criminal trials in Art. 241 of the Russian Federation’s CrPC is a form of social control over the independent activities of the court in the trial process. Davletov (2005) notes that the open trial allows citizens to be present, representatives of media agencies to observe the progress of the trial directly, in which all case documents are submitted by the Preliminary Investigation Agency and the parties of the case. A closed trial is only allowed on the basis of a ruling or a court order in cases where it involves states or the other secrets protected by federal law and where a closed trial is necessary to follow Art. 241 of the Code of Criminal Procedure of the Russian Federation.

Secondly, the accusing and the defense party are equal before the court. The Russian Federation’s CrPC removes the regulation which specifically lists evidence as to the basis for the prosecution in the indictment to ensure the equality of the adversarial parties at the trial «because the listing of evidence in an indictment can lead to the formation of internal beliefs of the judge and panel members about the defendant's guilt before the trial » (Procuracy University, 2011). Besides, the adversarial parties are guaranteed truly equal in their rights at the court hearing, such as the right to propose to change participants in the proceedings, to make requests, to present evidence, to take part in the examining evidence, to make statements while arguing at court sessions and to submit written opinions to courts (Art. 244 of the Russian Federation’s CrPC). Implementing this provision requires a huge role of the court, mainly of the presiding judge. It requires the court to have great independence in the trial process. To ensure this independence, Art. 259 of the Russian Federation’s CrPC has stipulated that the court session minutes must record the opinions of the participants in the court session about the presiding judge's activities. This is a measure to monitor and evaluate the activities of the presiding judge.

Thirdly, the right to defense of the defendant in court is considered. To be specific, the presence of defense counsels plays an important role in ensuring the right to defend as well as ensuring adversary in court. « If the defense attorney fails to appear at the hearing due to the defendant's refusal from the defense counsel, the court must find out the reasons for such refusal. If this refusal is of a forced nature, consideration of the case without a defense lawyer should be regarded as a violation of the right to defense» (Pechnikov, 2008). As long as the defendant does not refuse, the defense counsel must be present at the court hearing to make the defense. Considerably, according to Art. 52(1) of the Russian Federation’s CrPC « the refusal of the defense counsel does not take away the rights of the suspect, the accused continues to propose allowing the defense counsel to participate in the proceedings for the case ». This is a provision to ensure that accused persons have the right to have an advocate at the court hearing, thereby ensuring equality between the prosecutor's function and the defense function, ensuring the principle of the adversary in court, especially at first instance court.

Adversarial process at first instance court

The adversarial process at first instance court in criminal proceedings of the Russian Federation takes place through two procedures: the Judicial Investigation and the Parties' Presentations.

The procedure for interrogation at the first instance trial at the CrPC, known as the «Judicial Examination» procedure, is the procedure that allows parties to conduct adversary through cross-examination, « express their views on the nature of the criminal case and prove their points by presenting and evaluating the evidence before the court » (Smirnov and Kalinovsky, 2008). This phase is completely separate from the trial preparation phase and the argument part, in which the parties present the evidence and examine and evaluate the evidence publicly at the hearing. This process shall be commenced with a statement of the public prosecutor on the charge brought against the defendant, and in the criminal cases of the private prosecution — with the rendering of the statement by the private prosecutor (Art. 273(1) of the Russian Federation’s CrPC). Then, the court shall ask the defendant whether the charge is comprehensible to him, whether he recognizes himself to be guilty and whether he or his counsel for the defense wishes to express his attitude to the presented accusation (Art. 273(2) of the Russian Federation’s CrPC) before proceeding to examine the evidence presented by the parties and take the testimony of the participants in the court including the defendant, the victim, and witnesses. The court shall not itself take testimony, but the studying of proof as well as taking testimony will be conducted by the accusing party first, then to the defense party, and the order of studying each proof will be decided by the party which has supplied the proof to the court (Art. 274 of the Russian Federation’s CrPC). Taking the defendant's testimony requires the consent of the defendant, but the defendant has the right to give evidence at any moment of the judicial proceedings with the permission of the presiding justice (Art. 275 of the Russian Federation’s CrPC). The right to give evidence at any moment of the judicial proceedings is available to the victim. Moreover, the interrogation of witnesses must be taken with the requirement to ensure the objectivity and honesty of witnesses. Therefore, witnesses being present at the court hearing who have not yet turned to testify are invited to leave the courtroom, and at the same time not to interact with other witnesses or with other people present in the courtroom (Art. 264(2) of the Russian Federation’s CrPC). Taking testimony also includes an interrogation procedure conducted by the parties according to the principle of «cross-examination». «In cross-examination, the interrogation is conducted by both parties — the prosecutor and the defense attorney — of the same person about the same circumstances. Such interrogation helps to clarify this circumstance from different sides, since questions are asked from the position of the prosecution, then from the position of the defense» (Kislenko and Komissarov, 2003). The interrogation process, according to Art. 278 of the Russian Federation’s CrPC, is not fixed but depends on which party the person who was interrogated participates in the proceedings belongs. For instance, in the interrogation of the defendant, the first to interrogate him shall be the counsel for the defense and the participants in the judicial proceedings on the side of the defense, then the public prosecutor and the participants in the judicial proceedings on the side of the prosecution. With regard to a witness, the party requesting the summoning of the witness to court is the first one to put questions to the witness.

Therefore, the work in the «Judicial Investigation» proceedings will be conducted mostly by the accusing party and the defense party. The court will only ask the person who gave the testimony after the parties have finished questioning (main examination and cross-examination) that person (Art 275, Art 278 of the Russian Federation’s CrPC). The court may examine evidence presented at the hearing by: interrogating the expert; assessing evidence; announcing written investigative records and other documents engaging in other legal proceedings; inputting the documents presented in court into the case file; assessing on site evidences in connection with the case; experimental investigation; facilitating identifications; examining traces on bodies (Art 282 to 290 of the Russian Federation’s CrPC). For the purpose of determining the truth of the case, these measures help the court objectively evaluate the value of each proof without being influenced by the parties' views.

The «Parties' Presentations» is indispensable in the proceedings at the court, including the statements of the accuser and the defendant. If there are no defense counsels, the defendants act as defense counsels, self-defend, and conduct debates. The victims and their representatives also have the right to participate in the presentations. Civil plaintiffs, civil defendants, their representatives, defendants shall have the right to file a petition for participation in the parties' presentations. The court shall not intervene, but guarantee the parties' right to presentations, determine the order of argument. In case the accuser speaks first, then the defendant and the defense counsel state afterward. The civil defendant and their representatives present arguments after the civil plaintiff and their representatives have spoken. After all the participants in the discussion have pronounced their speeches, each of them shall be entitled to present their opinions in response once again. The right to present the last response shall be performed by the defendant or by his defense counsel. In order to ensure the adversary, the court shall have no right to limit the length of the parties' presentations, but the presiding judge has the right to prevent participants from the presentation if they concern the details not relating to the criminal case under examination or the proof which have been recognized as inadmissible. On the basis of Art. 292 of the Russian Federation’s CrPC, the court shall have the right to return to the court investigation if new facts that are significant to the case arise. At the end of the argument, the defendant shall have the right to say the last words without any time restriction or being questioned while giving the last.

Differences in guarantee adversary at the first instance trial in the CrPC of Vietnamese compared with the CrPC of the Russian Federation

Adversary principles are also recorded in Art. 26 of the Vietnamese CrPC 2015, including the following contents: equal rights between the parties of the proceedings in presenting evidence, evaluating evidences, making requests; the examination of documents and evidences in the case files; the court's responsibility in ensuring the dispute at the court session and the issuance of the court's judgments or rulings must be based on the results of the examination and assessment of evidences and the results of the adversary at court sessions.

Provisions to ensure adversary at first instance court sessions

Compared with the Russian federal criminal proceedings, Vietnam's criminal proceedings are still limited in recognizing adversary elements. The criminal proceedings model is selected by both Vietnam and Russian Federation as a mixed procedural model, in which the basic features of the inquisitorial model account for the majority but absorb the progressive characteristics of the adversarial model. However, there are differences in adversarial factors in each country's model. One of the basic characteristics of Vietnam’s criminal proceedings is that «it does not have a clear distinction between the functions of the proceedings, which are the incriminating function, the defense function and the adjudication function» (Dinh, 2020) . Accordingly, based on Section 1 Art. 4 Vietnamese CrPC, the subjects include entities given authority to institute proceedings and subjects participating in the proceedings. Unlike the Vietnamese CrPC law, the classification in the Russian Federation’s CrPC is much clearer, delineating by proceedings functions. In Vietnam, agencies with the function of investigation, prosecution and adjudication are classified into the group of the authorities given authority to institute legal proceedings; suspects, defendants, defense counsels, and others are classified as the participants in legal proceedings. This approach has led to a number of differences which are unreasonable in ensuring the adversary. Several issues are recognized within the connotation of the adversary principle, which is defined as a separate principle. For example, the principle of independence of the judge and lay assessors and sole compliance to the laws in Art. 23 of the Vietnamese CrPC 2015, which includes independence with the incriminating and defense functions has failed to include such adversary contents as: the independence between the procedural functions, the equality in the court of the prosecutor and the defense. On the other hand, although Art. 26 of the CrPC of Vietnam has recognized «equality in presenting evidence, evaluating evidence, making requests» , this principle is difficult to be guaranteed because in the position of the authority, the procuracy, when exercising the prosecution rights granted by the state power, has advantages in using the evidence that the investigative agency has collected and presented incriminating evidence in the case file. Meanwhile, as participants in legal proceedings, the defendants and defense counsels will have certain difficulties in collecting evidence, accessing the case files of the investigating agency, and presenting evidence in court. Specifically, the Vietnamese CrPC 2015 stipulates that the defense counsel has the right to request evidence from the organization or the agency. However, it does not stipulate that in case the agency or organization does not provide evidence, which measures the counsel would be allowed to take to force them to provide all the needed evidence. By contrast, as the procuracy is a competent procedural body, it is also easier to use incriminating evidence from the investigating body as well as to collect evidence from other organizations. This is a feature that restricts the adversary because «an adversarial system of criminal justice is dependent on the right of both the prosecution and the defense having equal ability to present and comment on evidence under consideration» (Ciment, 2016) . In another hand, based on Art. 15 of the Vietnamese CrPC 2015, the court — as a competent procedural authority, in addition to the judicial function, still has the responsibility to prove the truth of the case. This is another characteristic that is inconsistent with the spirit of the adversary principle because «having to prove criminal cases will affect the objectivity of the court when making its judgments» (Law Faculty of Hanoi National University, 2004). The Vietnamese CrPC 2015 has specified in detail to ensure the attendance as well as the responsibility to be present at the hearing of individuals given authority to institute proceedings and participants in legal proceedings. However, provisions on the right to defend himself in the absence of the legal defense counsel, as well as the provision «not depriving of the right to be defended by another in case the defendant has refused a defense counsel» has not been recorded in the Vietnamese CrPC 2015. Consequently, the defendant’s right to be defended and the right to defend himself have been omitted in some cases. For example, the defense counsel is absent, or the accused with undesirable pressure has refused the defense counsel before the trial; after that he asked for a defense counsel at the court hearing but was not given because he had refused the defense counsel before.

Ensure principles of adversary at first instance criminal court sessions

Procedure at the first instance criminal court in Vietnam also includes two sections with similar sequences to the Russian Federation’s first instance criminal court. The first part is the Questioning section that begins with the Publication of the Indictment. In this section, the parties will conduct the questioning and present and provide evidence for the court to consider. The second section is the oral Argument section, starting with the procuracy’s presenting the impeachment, and the parties will present their arguments for the court to consider the views of the parties. This section ends with the defendant's last words, then the court moves to deliberation and judgment. However, the working order of these procedures shows that the trial panel at the first instance criminal court in Vietnam actively takes part in the proofing process, not just playing an arbitration role as the trial panel at the first instance criminal trial in the Russian Federation.

The questioning process has the active participation of the trial panel. For example, when questioning each person, the presiding judge of the court hearing will ask first and then decide to let the judge, the juror, the prosecutor, the defense, and the protector of the legitimate rights and interests of the involved parties conduct the questioning. The pre-questioning of the presiding judge, as well as the other judges and the lay assessors, derive from the burden of proof of the court in Art. 15 of the Vietnamese CrPC 2015. However, this provision not only does not guarantee the independence of the court in the trial process but also affects the performance of the incriminating function as well as the defense function. Such provisions « confuse procedural functions; making the adversary lack objectivity and fairness. At the same time, it reduces the role of the procuracy as the subject of charges at the trial » (Pham, 2020). In the questioning section, the court will conduct a review of testimony as well as evidence and documents that the parties provided at the hearing. However, the parties did not have autonomy in providing evidence at this stage and were not allowed to decide on the order of evidence to be presented to the court like the CrPC of the Russian Federation. The questioning was also executed to the defendant, the witness, and the examiner and valuator. For defendants and witnesses, the presiding judge shall decide to ask them separately, and if a defendant's testimonies affect the other defendant's, the presiding judge must isolate them. However, concerning the questioning of a witness, although there are provisions that do not let other witnesses know the content of the questioning, the CrPC 2015 of Vietnam has not clearly defined the isolation of the witness and let witnesses come into contact before and during the trial.

The oral arguments section in the first instance criminal court begins with the conclusion by procurators. Unlike the first instance criminal court in the Russian Federation where the order of speech during arguments is decided by the court, the order of speech in the first instance criminal court in Vietnam is clearly defined by Art. 320 of the Vietnamese CrPC 2015: from procurator to defendant then to defense counsels and ultimately crime victims, litigants, representatives, and defense counsels of their legitimate rights and interests (if any) present opinions to protect their legitimate rights and interests. The CrPC of Vietnam does not record the procedure of «private prosecution» as the CrPC of the Russian Federation, but only records the case which is prosecuted at the request of the victim. In this case, the victim or his representatives present or supplement their opinions after the procurator presents the impeachment.

Lessons learned for Vietnam in ensuring adversary at the first instance trial of criminal cases

Firstly, on the basis of referring to the experience of the Russian Federation’s CrPC, one of the most important conditions to ensure the adversarial process is the independence of the proceeding agencies, which means the classification of subjects based on specific functions in the proceedings. Based on the foregoing, the criminal procedure model chosen by Vietnam has recognized that the court «is held liable for proving guilt» , defining the court's responsibility to prove the truth. However, «the question is how the court proves the truth of the case, how the court's activities to prove the truth are determined by the characteristics of the judicial activity and how the court determine the truth of the case» (Dinh and Nguyen, 2017) . Therefore, it is necessary to define that the court's responsibility to prove the truth is separated independently from the procuracy's responsibility to prove based on the approach of classifying the subjects in the proceedings by procedural functions. To be more specific, the court's responsibility to prove the truth of the case should be limited within the characteristics of the judicial function of it, which is evaluating the validity of evidence provided by the parties, not proving the issues that fall under the responsibility of the accuser and the defense. On the other hand, categorizing subjects according to procedural functions will help them perform the various procedural functions equally before the court and give the defense «an authority and position equal to that of the proceeding agencies and the prosecutors in seeking the truth as well as against anything untruth» (Dao, 2011). Since then, it is closer to ensuring proper adversary in court.

Secondly, in the perspective of specific classification and ensuring the independence between the procedural functions to ensure the adversarial process, we believe that it is necessary to define the order of inquiry when questioning each person reasonably. In order for the functions to be fulfilled, it is necessary to determine the order of the questioning: the first person having the authority to question is the procurator, the victim, and the person who claims the damage (if any), then the defense counsels, the protectors of the involved parties' legitimate rights and interests, and finally comes to the presiding judge, the other judges and lay assessors. The members of the trial panel should only ask about issues that are not clear that need to be clarified but the parties have ignored them. By following the aforementioned proposals, the objectivity of the questioning and the independence of the court in the trial process are ensured.

Thirdly, the CrPC 2015 of Vietnam does not yet have regulations on private asking witnesses in questioning part that make the assurance of adversary not fully be expressed. Therefore, these issues need to be more clearly defined in Vietnam’s CrPC and should be viewed as a court’s procedural rule to ensure adversary in a trial at first instance criminal case.

Fourthly, one of the problems that need to be revised to ensure the adversary is the decision of the trial panel to return the case file at the hearing to the Procuracy for additional investigation. Under the guidance in Art. 3 of Joint Circular No. 02/2017/TTLT-VKSNDTC-TANDTC-BCA-BQP, when the trial has been opened, the trial panel shall issue this decision when there is a lack of evidence to support the specified issues mentioned in Clause 2 of this Art. These are key pieces of evidence serving the proof of crime as provided for in Art. 85 of the Vietnamese CrPC. Although the purpose of this institution is « to ensure an objective, comprehensive and accurate resolution of the case, meeting the requirements of prevention and fighting against crime » (Nguyen, 2009), in the process of exercising prosecution rights, it is the prosecutor's responsibility to limit these situations. However, the provision of returning case files to the procuracy for further investigation for this reason «is a manifestation of a violation of the important principle of the adversary proceeding: A procedural entity performing only one procedural function» (Dao, 2014), causes inequality between the accusing party and the defense in the collection and evaluation of evidence . Furthermore, this Art. of law violates the principle of presumption of innocence (Hoang, 2017). To be more specific, in this situation, the procuracy made an indictment without sufficient evidence to prove the crime. According to Art. 13 of the Vietnamese CrPC 2015, «if grounds for conviction, as per the procedures and formalities in this Law, do not suffice, competent procedural authorities and persons shall adjudge the accused person to be not guilty» that means the court must adjudicate the defendant and declare the defendant not guilty because there is no criminal act or the act does not constitute a crime. However, under this circumstance, the trial panels decided to return case files to the procuracy for further investigation. Unconsciously, the court now plays an accusing role rather than an arbitrator. Additionally, because when the accusing party lack of evidence or not fully considered the evidence in the case file, they are entitled to request to return the files for additional investigation. But if the defense does not have enough evidence to defend, they are not entitled to request the return of the file for additional evidence, which also means that the court will issue a detrimental sentence against the defendant.

We recommend acquiring experience of the CrPC of the Russian Federation in sending a criminal case back to the public prosecutor that the trial panel only carries out this procedure when there are serious mistakes in the procuracy's case file preparation, thus preventing the court to pass the sentence or some other decision based on the given case file, or in the case cannot guarantee the defendant's interests. They shall not carry out this procedure outside the reasons specified in Art. 237 of the Russian Federation’s CrPC. This provision is attributed to an independent separation between procedural functions. The independence of the judicial function in Russian’s Criminal Procedure is one of the conditions of the adversarial principle as mentioned above. The prosecutor's failure to provide sufficient evidence of incrimination in the case file may result in the court declaring the defendant not guilty. This provision is more reasonable than the content in 2015 CrPC of Vietnam because the trial panel's pre-trial case file studying must focus on determining whether the proceedings conducted are qualified to bring the case to trial, whether the legal rights and interests of subjects taking part in the proceedings are guaranteed or not, whether the collected evidence is in the correct order and procedure as provided by law. If our CrPC acquires the experience of the CrPC of Russia, it will both ensure adversary at first instance criminal court sessions and the judicial function of the court. What’s more, the case is resolved following the law and the objective truth that has been expressed by the presented documentary and evidence through the adversarial process at the trial, not be based on a pre-trial study of evidence without focusing on the adversarial process at court. The process of pre-trial case file studying is just to ensure that evidence and case files are collected and established in accordance with provisions of law.

Fifthly, at present, there are a lot of notions on provisions relating to ensuring adversary at first instance criminal court in Vietnam, such as the procurator's revocation of the decision to prosecute in court and the limits of the court's adjudication. Regarding the revocation of the procurator in court, there is a view that the legal consequences of this decision are not suitable to the conditions of the adversarial principle. To be specific, at the trial, if the procurator revokes parts of the decision to prosecute or draws conclusions on lesser offences, the panel shall sustain the trial (Art. 325(2) of Vietnamese CrPC 2015). If the procurator revokes the entire decision to prosecute, before the deliberation, the panel requires the participants in the proceedings to present their opinions on such revocation (Art. 326(4) of Vietnamese CrPC 2015). When deliberating, if there is a ground to determine that the defendant is not guilty, the panel shall issue a judgment declaring the defendant not guilty; if the revocation of decisions on prosecution is not grounded, the panel shall issue a decision to temporarily suspend the case and recommendation to the same level Head of the People's Procuracy or the director of the immediate higher-level People's Procuracy (Art.326(4) of Vietnamese CrPC 2015). However, the panel's continuation of the trial, in this case, is considered inappropriate because the indictment and the accusation against the defendant ended when the procuracy revokes the prosecution decision, and thus, the trial is not necessary (Tran and Ho, 2018). In case, after questioning, the procuracy revokes the entire decision to prosecute, the trial will not have an impeachment of the procuracy and the logical consequence is that there will be no argument between the procuracy and the defendant, defense, victim (Dinh, 2010). However, there is a second notion stating that the judicial function of the court is completely independent from the incriminating function of the procuracy, and at the same time, judges and jurors are independent and only obey the law. Therefore, although the procurator revokes the decision to prosecute in court, the trial panel shall continue the trial. The panel has enough grounds to make a judgment based on the result of the assessment of evidence and the oral arguments in the court. If the defendant is found guilty and the withdrawal of the prosecution decision is unfounded, the trial panel has full authority to convict the defendant to be guilty, otherwise, the trial panel can declare the defendant innocent. The provisions on the responsibility of the court to suspend and to recommend in this case will make the trial prolong, and affect the independence of the court.

Relating to this issue, in accordance with Art. 246(7), Art. 254(2) of the Russian Federation’s CrPC: when the Prosecutor refuses the charges and informs the court of the reasons for refusal, the court will have to suspend the case or suspend criminal prosecution in whole or in part. However, for Vietnamese criminal proceedings, this experience is only suitable to apply before the opening of the first instance court hearing. Although the accused function ended when the Procuracy revokes its entire decision to prosecute at the trial, the court independently began exercising the judicial function from the moment the trial opened. This function cannot be affected by performing other functions. Therefore, the trial panel still has the right to make a judgment based on the results of the adversarial process at the trial. From this specific characteristics of the Vietnamese procedural model as presented, and the fact that the provisions of procurator’s revocation of decisions to prosecute in court in the CrPC 2015 are assessed as being «complete and there is no obstacle to the resolution of the judgment» (Tran and Ho, 2018), it is still necessary to ensure the independence of the panel in ensuring the adversary at the trial. In this case, the trial panel can issue a decision without temporarily suspending the case and informing the same level Head of the People's Procuracy or the director of the immediate higher-level People's Procuracy a present.

Regarding the limits of adjudication in Art. 298(3) of the Vietnamese CrPC in 2015, there is an opinion stating that the court cannot adjudicate the accused under a more serious charge than the one prosecuted by the procuracy because « there will be no adversary as there are not enough adversarial subjects. And it does not raise the issue of the adversary because if the court has determined the charges before trial, the adversary has no purpose and no longer makes sense » (Phan, 2017). This notion is based on principle «nemo judex sine actore» — there is no trial without the plaintiff (Dao, 2014). In accordance with this theory, Xavitxki (1971) has argued: «In the system of basic Criminal Procedure functions, the prosecution function is considered playing a key and decisive role. Without accusations, there can be no criminal proceedings, criminal proceedings will become without purpose and object». It has been noted (Le, 2003) that: « The prosecution function makes other procedural functions appear, put the proceedings into operation. The prosecution function is a mandatory and normative function, without the prosecution function, there is no defense function and of course there is no adjudication function ». Moreover, charging the defendant with a more serious offense is alleged to violate the right to defense, as the defense is not prepared to defend the more serious offense. If there is an adversary, it is ineffective because the court has determined the charge that replaces the functions of the procuracy. However, in reality, the first instance court trial has generated certain problems. For instance, the court must make a verdict in compliance with the prosecution limit of the procuracy, then have to appeal to cancel their own judgment because they find defendants commit more serious crimes than the prosecution decision. Therefore, Art. 298(3) of the Vietnamese CrPC in 2015 has specified: «If the defendants must be tried for a crime more serious than that of the procuracy, the court shall return the case to the procuracy to re-prosecute and have defendants or their representatives and defense counsels informed of reasons. If the procuracy still prosecute the original crimes, the court shall be entitled to adjudge the defendants to crimes of higher degree» . This provision also aims to ensure the independence of the court in the trial, ensure that the court's judgment must be based on the results of the questioning, adversary and the evidence that have been publicly examined at the trial and concretize the principle of judges and jurors who conduct independent trials and only obey the law (Nguyen, 2016).

In accordance with Art. 252(2) of the CrPC of the Russian Federation, it can be seen that the CrPC of the Russian Federation does not allow the court to sentence the defendant for a more serious offence than the one prosecuted by the public prosecutor. The criminal procedure of the Russian Federation clearly divides the prosecution, defense, and adjudication functions. Although these functions operate independently of each other, there is still a connection between these functions. If there is no charging, there will be no defense and no adjudication, thus leading to no criminal proceedings (Smirnov and Kalinovsky, 2008). This means that the exercise of the charge gives rise to the defense and judicial function.

However, in Vietnam's criminal justice, the independence of judges and people's jurors when conducting trials is one of the prerequisites to ensure adversary. Although the incriminating function is the one that determines the introduction of other functions, the judicial function of the court cannot be dependent on and limited by the incriminating function. This feature is also the basis for the court to clarify the truth of the case, which is a fundamental value of the Vietnamese criminal procedure. Consequently, the trial for a more serious crime, besides strictly complying with other provisions of the CrPC, such as provisions on the jurisdiction of the courts at all levels, on the composition of the first instance panel, on ensuring the right to be defended of the defendant and on the applicable procedure (Mai, 2017), must be the result of the trial panel's full consideration of documents, evidence and views of the parties which were presented through the adversarial process in court, not result from of the case file studying in many understandings today. To ensure that, we propose to supplement regulations or issue guidance with the content: The decision to sentence the defendant on a more serious offence than the one that the procuracy prosecutes is only made after the panel has deliberated. The grounds for hearing the defendant on a more serious offence must be clearly stated in the sentence. Furthermore, it is necessary to guide in more details that: During the trial preparation phase, the judge and People's jurors study the file in order to establish procedural conditions to bring the case to trial, to ensure legal rights and benefits of the subjects participating in the proceedings. An examination of the trial panel's members' files before a court hearing is not the process of evaluating evidence contained in the case file or clarifying the contents of the case. Provisions in this direction help the court be truly independent in the trial process, contribute to ensuring adversary at first instance criminal court sessions, and contribute to ensuring that the case is properly resolved in accordance with the law, such as clarifying objective truths by considering comprehensively the evidence presented by the parties at the hearing and the adversarial process between the parties.

Conclusion

The nature of the traditional criminal justice system in Vietnamese is clearly changing in the direction of selectively acquiring progressive characteristics of the adversarial model, suitable to the Vietnamese circumstances (Ministry of Justice, Supreme People's Procuracy, 2018). The Vietnamese CrPC 2015 provides a more concise and detailed provision of the adversary at the first instance criminal court. These provisions provide balance and some adversarial rights for the parties in the court proceedings. Therefore, the court session shows the most focused and clearest adversarial activities of the parties. However, some features of the Vietnamese CrPC on the first instance trial are not exactly in the spirit of the adversary, such as the classification of subjects participating in the proceedings, the independence of the court and trial panel, the role of the trial panel when conducting questioning and presentations procedures, the order of questioning, the role of the parties in presentations, the procedures for returning case files for further investigation, the withdrawal of a prosecution decision and the limit of a trial. Stemming from the traditional legal thinking of Vietnam such as The Vietnamese Criminal Justice does not consider a criminal case to be disputes or legal conflicts between the parties, the goal of the Vietnamese criminal procedure is to find the objective truth of the case. Investigation and interrogation are still the main methods to find the truth of the case and the overcoming of the above limitations of the Vietnamese CrPC is a complex issue (Le and Nguyen, 2010).

These matters affect the quality of the finding objective truth process as well as the resolution of the case and the participation in adversary of the parties. However, these problems can be resolved through consultation with the experiences of the Russian Federal Criminal Proceedings. The elements of adversary in the Russian Federation are clearly shown in the rules of the first instance criminal trial. Among these elements, some experiences may be consistent with the procedural model that Vietnam chooses, such as the classification of subjects based on specific functions in the proceedings, the independence between the procedural functions, the regulations on the private asking witnesses, the reason of returning the case file to the Procuracy for additional investigation, the procurator's revocation of the decision to prosecute in court and the limits of the court's adjudication. The study and effective application of these experience are essential to the current Vietnam’s judicial reform.

Declaration of conflicting interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this Article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this Article.

Notes

Code of Criminal Procedure 2015 of Vietnam;

Code of Criminal Procedure of the Russian Federation dated December 18, 2001, was amended and supplemented many times, updated most recent revision on July 9, 2020 (Russian version). Link: http://legalacts.ru/kodeks/UPK-RF/, accessed December 7, 2020.

Joint Circular No. 02/2017 / TTLT-VKSNDTC-TANDTC-BCA-BQP dated December 22, 2017 of the Supreme People's Procuracy — Supreme People's court — Ministry of Public Police — Ministry of Defense providing for coordination among procedural agencies in implementing a number of provisions of the CrPC in returning case files for further investigation

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