VietNamNet Bridge – The National Assembly is now discussing whether or not to include in amendments to the Criminal Procedures Code a person’s right to remain silent when detained in a criminal investigation. Opinions are divided. Thu Van gathers insights on the issue from senior police officers, a lawyer, a prosecutor and a legal representative for a victim of a wrongful conviction case.

What is your opinion about the right to remain silent? Should it be included in the Criminal Procedure Code?

* Associate Professor, PhD Nguyen Hoa Binh, Prosecutor General of the Viet Nam's Supreme People's Procuracy

Nguyen Hoa Binh

First, I think we need to truly understand the nature of this right. It means that a suspect is not obliged to confess to the crime or submit evidence incriminating himself in the case. This means that during the entire criminal proceedings, law enforcement agencies can't treat it (refusal to confess) an aggravating factor during the investigation.

To ascertain whether or not this right is of essential importance, we need to look at the basic principles of legal proceedings. The first principle is that the onus of proving a person's culpability or guilt is on law enforcement agencies. The second principle is that during criminal proceedings, evidence prevails over any declaration. Thirdly, the statement of a suspect is valid in a court only if it is compatible with other evidence. Finally, the declaration of a suspect can't be used as proof of a crime in a trial if it's the single piece of evidence.

Essentially, what I want to say is that a suspect's statement does not carry primary importance during investigations and criminal proceedings.

* Thai Bao Anh, managing partner of Bao & Partners Law Firm

The right of a person to defend herself or himself during criminal proceedings against them is undoubtedly a basic right. This right is enshrined in different regulations: a suspect has the right to submit evidence to prove his innocence, the right to have lawyers and legal assistance, the right to ask for a change in the jury panel if she/he deems (and can prove) that the panel is prejudiced against her/him, and most importantly, the right to remain silent.

Why is the right to remain silent important? In the proceedings involving investigating authorities and the investigated person, there is an inherent inequality. The investigators have the means to gather evidence and are not obliged to inform the suspect of the information that they have gathered. The investigators also have adequate knowledge of legal proceedings as well as interrogation techniques. On the other hand, the investigated person is often at a disadvantage. She/he is isolated, might not have enough knowledge of legal proceedings, and might not know if the interrogation techniques deployed are legal.

The persons being investigated can defend themselves in many ways, but irrespective of this, they need to have certain knowledge and skills. Of all the possible ways, remaining silent until they get the assistance of a lawyer is the most simple one that can be availed of by anyone in any circumstance.

Therefore, in my opinion, in countries where many conditions are underdeveloped, like Viet Nam, the right to remain silent is even more important and essential, because it's the simplest protection tool for everyone. This is vindicated by the fact that this right has been applied since the 16th century in many countries at a much lower stage of economic development and people's awareness than Viet Nam at present.

To take another approach, we need to consider the question of priority when legalising this issue: do we prioritise protecting the innocent from false confessions or do we prioritise finding someone responsible for the crime?

There might be just one person who committed the crime, but there are always numerous suspects. After the investigation, there is a 50 per cent chance that we find out someone responsible, but we cannot be certain (at this stage) that she/he is the real criminal. So the number of innocent people is always bigger than that of criminals.

If I have a say, I would prioritise the protection of innocent people. In other words, I support application of a suspect's right to remain silent, because I believe that the number of good people is still greater than the number of bad people, and the former deserve to be protected by law. Certainly, the right to silence can never be absolute: a suspect can keep silent until she/he accesses other protective tools provided by the law.

* Senior police officer who wants to stay anonymous

We have our own argument in protesting the application of this right. People might say that it's a human right and innocent people need to be protected, but that's because they don't have to be responsible for ensuring social security and order. We have to be responsible. Charged with this task, we can't miss (apprehending) criminals. If they commit serious crimes and keep silent the whole time, it will be very difficult for us to find out the truth. So this right will surely hinder our professional work.

To be able to arrest a suspect is already complicated, and if they have the right to remain silent until a lawyer is present, accomplices might be able to escape.

I agree that this right is rational, but we have to consider our society's current context. We can apply it when Viet Nam is much more developed.

* Hoang Manh Hung, former Deputy Director of the Ministry of Public Security's Institute of Forensic Science

There have been different opinions on this issue – it seems to me that lawyers and the public are for it, and that most officers of the Public Security Ministry is against it. We need to understand their difficulties in the investigation process to identify criminals and prevent crime, but it's also essential that we weigh the pros and cons of applying the right to remain silent.

If we don't apply it, things will be easier for the investigators - in this case, the investigative police agencies. But if we do, it will bring in greater good.

Firstly, the right is a basic human right, and we need to adapt to international law in this regard. Secondly, investigators have to improve their professional skills to avoid wrongful convictions. Thirdly, innocent people will be better protected.

So we can see clearly that the benefits of this right outweigh the disadvantages. It will be likely more challenging for the police, however it's a good thing to try, and if we're too worried about doing it, it will not help our legal sector: We won't be able to improve the quality of the law-making process, and we won't be able to raise our people's knowledge and awareness.

Avoiding wrongful convictions of innocent people must be a priority and it's a goal that a civilised society should have.

Many lawyers have complained that their involvement in the criminal proceedings happens too late, which hinders them from protecting the constitutional rights of their clients. Furthermore, official statistics show that in most cases where the accused appeal, they claim they were coerced or tortured into making a false confession. How would the proposed amendments to the Criminal Procedure Code tackle this?

Binh: The draft revision of the Criminal Procedure Code includes many progressive provisions that address these issues.

It includes a whole chapter on the activities of lawyers. The draft revision also replaces the old regulation that requires lawyers to have an "advocacy certificate" with a new one that only requires them to register with relevant agencies. This will allow lawyers to get involved in the proceedings much earlier. Meanwhile, courts will be able to assign responsibility to those who are in charge of the proceedings if there is any tardiness in the lawyers' registration process.

Do you anticipate any difficulties in applying this right in Viet Nam?

Hung: I think it's the investigators who will find their work challenging if the right is included in the code. We need to admit that the professional skills of Vietnamese investigators and police are still limited compared to developed countries. However, if we're preoccupied with difficulties that can arise, we won't be able to catch up with the world.

With the involvement of lawyers during the interrogation process, investigators will have to equip themselves well with interrogation techniques and knowledge that can prove a person guilty without coercion. For me, that's a good thing. The State agencies should take the "challenging part" for themselves and save the other part for the people.

What needs to be done to overcome this challenge is to focus on enhancing professional skills of investigating units. When they are really good at their job, there will be no difficulties, because it's always been like that: the responsibility of proving a person's guilt in a crime rests solely with the proceeding agencies (investigators and prosecutors).

Miscarriage of justice

Than Van Hoat, brother in law of Nguyen Thanh Chan, who was wrongfully convicted and jailed for 10 years in 2004, told Viet Nam News that the consequences had been severe for the victim and his family. Chan was accused of killing his neighbour Nguyen Thi Hoan after a failed rape attempt.

After the real criminal confessed, Chan was released from prison last year. He told the media that he had been threatened and tortured into making a confession during the investigation process with no defense lawyer present during his interrogation.

Than Van Hoat said: "I'm glad to know that the lawmakers are finally considering the right of a suspect to keep silent until he or she has a defense lawyer. I believe with the early involvement of lawyers, the abuse of power will be limited – the interrogation process will happen properly when a suspect has proper legal assistance. In my brother-in-law's case, the first and foremost error was committed by investigative police.

However, to me, the most important thing is we have to enhance the professional skills of the law enforcement forces – they have to be really good at their job. And they also have to work ethically with integrity".

VNS