US embassy cable - 05HANOI1037

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