Cablegate: Criminal Trial Procedures Reform Stalled

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 02 HANOI 001037

SIPDIS

SENSITIVE

STATE FOR EAP/BCLTV AND DRL

E.O. 12958: N/A
TAGS: PGOV KJUS VM HUMANR
SUBJECT: CRIMINAL TRIAL PROCEDURES REFORM STALLED

REF: A. 04 Hanoi 1667 B. 03 Hanoi 2074

1. (SBU) Summary: Vietnam's efforts to introduce American-
style "adversarial" courtroom procedures have stalled and
the long standing problem of "tailored sentencing,"
sentences decided through consultations among judges before
a trial takes place, is still prevalent. The GVN has not
yet issued the necessary instructions to guide the
implementation of amendments to the Criminal Procedures Code
that allow for American adversarial litigation. Aside from
easing restrictions on the amount of time lawyers are
allowed to address the court, there have been no major
changes to the existing system of French-style
"investigative" courtroom procedures. However, the passage
of the amended Code has contributed to raising public
awareness about citizens' basic rights. The Politburo has
reportedly adopted a long-term plan on judicial tasks that
would give courts more power. End Summary.

Criminal Litigation Reform Yields Few Concrete Results
--------------------------------------------- ---------

2. (SBU) Ngo Cuong, Editor-in-Chief of the Supreme People's
Court (SPC) Judicial Affairs Journal, told PolFSN that,
although the CPV Secretariat issued in 2002 a resolution on
"urgent judicial tasks" that encouraged a move toward
adversarial litigation, there have been no further studies
on an introduction of this new style of litigation. As a
result, Vietnam retains its long-standing system of French-
style "investigative" courtroom procedures -- in which the
judge leads the questioning of the witness. The amended
Criminal Procedures Code that took effect July 2004 contains
"nice words" about adversarial litigation, but the GVN has
not issued any other instructions or guidance for legal
bodies on the necessary changes to the way they should carry
out their duties. The revised Code theoretically allows for
defense lawyers to collect evidence, but it does not provide
specifically for how they can do this. The lack of guidance
on the involvement of defense lawyers during the
investigative process increases the likelihood that the
court's panel of judges could be overly influenced by the
police and the prosecutor, Cuong suggested.

3. (SBU) Cuong, himself a Deputy Department Director for
Judicial Studies at the SPC, confirmed that judges still
generally act in a "traditionally safe manner." They tend
to issue "tailored sentences" agreed upon among the judges
in charge of a case based solely on the information included
in the police investigation, or based on discussions between
the bench and the prosecutors in more complicated cases.
There are exceptions in which defense lawyers prove to be
"exceptionally persuasive," however. In these cases, the
judgment panel calls on the investigators to conduct
additional investigations, instead of releasing the accused,
due to "lack of evidence." By doing so, the judgment panel,
which includes at least one judge and two lay assesors, is
essentially on the "same side" as the prosecutor, which
"violates basic rules," Cuong asserted. He attributed this
tendency to the lack of life-long judge appointments, which
leads to the dependency of judges on court officials who
control judicial re-appointments, conducted every five
years.

4. (SBU) Echoing Cuong's comments, Pham Hong Hai, one of the
country's most well-known lawyers and a former senior staff
member of the State and Law Institute, asserted that the
biggest obstacle to the actualization of an adversarial
style of litigation in Vietnam is the common practice in
which judges consult with court officials to reach a
"consensus" on possible sentences before a trial takes
place. The only good thing about the amended Criminal
Procedures Code is that lawyers now have fewer time
restrictions on them when they address the court, he
articulated.

Red Tape Constricts Defense Counsel
-----------------------------------

5. (SBU) Hai criticized law enforcement agencies, namely
investigative offices, for their unfavorable treatment of
defense lawyers. Defense lawyers often have to wait a long
time before receiving a "certificate" from the investigation
office that would (in theory) allow them access to the
charged. Acquiring this certificate requires them to
present a number of documents, including copies of their
licenses, introductory letters from the law office they work
for and copies of labor contracts with the law office. In
many cases, there is a Catch-22: defense lawyers must
present documents from the charged requesting them as
counsel, but in order to receive such a document, the
defense attorney has to meet with the charged. Previously,
defense lawyers only had to present a letter of introduction
from the law office, together with a request in writing from
the family of the charged. "It does not seem right that we
now have many more requirements and much more paperwork",
Hai grumbled.

6. (SBU) Another obstacle to a more adversarial system is
the general unwillingness of investigators to help by
granting defense attorneys access to case dossiers. Hai
complained that lawyers often have a hard time getting
"access" to investigators, who "always claim to be
physically out of the office." Making copies of documents
is also a problem, because in many cases, court staffers can
refuse to help by citing the unavailability of photocopiers,
or simply saying, "we are too busy," Hai claimed.

7. (SBU) Ngo Huy Cuong, a lecturer in the Law Faculty of
Hanoi National University, claimed that the quality of
investigators and prosecutors is a great concern.
Prosecutors often fail to successfully present their cases
in court, while only 50 percent of investigators have
college degrees. Cuong believes that the trend of judges'
basing their sentences almost exclusively on investigation
results -- rather than on an "adversarial litigation" style
-- has caused the high number of judicial mistakes in
Vietnam, namely wrongful prosecutions and sentences.

Courts to Have More Power
-------------------------

8. (SBU) According to Ngo Cuong, the Politburo just passed a
classified resolution on strategic tasks in the area of
judicial reform in Vietnam for the years 2006-2020. The
resolution requires further revisions to the existing
Criminal Procedures Code as well as the Civil Procedures
Code. Those amendments are apparently designed to better
protect citizens' rights (as opposed to the rights of
judicial agencies) and facilitate Vietnam's entry into the
WTO. It stresses the necessity of having more qualified
judicial workers, especially lawyers. Studies will be
undertaken on changes to the current judicial system, such
as creating a more significant role for the courts. The
courts may be given control over the investigation process,
while the Procuracy could well become a Prosecutor's Office
under the Government. The resolution makes clear, however,
that no possible changes with regard to the Procuracy would
take place before 2010.

9. (U) The Politburo's resolution stresses the strengthening
of the Party's leadership over the judicial system. It
specifically requires that presiding judges of People's
Courts at all levels to be standing members of Party's
Committees at the same level. In other words, the Presiding
Judge of the Supreme People's Court would need to be in the
Politburo or at least a member of the Secretariat.

10. (SBU) Ngo Cuong, who is rumored to be a close confidante
of Nguyen Van Hien, current SPC Presiding Judge, said Hien,
a member of the CPV Central Committee who has the rank of
Deputy Prime Minister, has discreetly showed his discomfort
over the current limited power of the courts. Hien
reportedly compared the Party to a big conical hat that
overshadows a small bowl representing the National Assembly,
which in turn overshadows a small dot, the courts, and said
"such a thing is truly irrational."

11. (U) Comment: Vietnam's inability to follow through on
its intention to create a more adversarial litigation style
is reflective of the difficulties in overcoming the
courtroom traditions established by the French. At least
the passage of the amended Criminal Procedures Code in 2003
has contributed some to raising public awareness about
citizens' rights while seemingly sending a message to law
enforcement agencies about the need to correct the current
widespread problems of police abuse and judicial mistakes.
In one case, this prompted a National Assembly Standing
Committee to offer compensation to victims of judicial
mistakes (ref. B). End comment.
MARINE

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