E/CN.4/1995/31/Add.4
page 17
The Ministry of Justice is thus responsible only for preparing draft
legislation and regulations, overseeing the judicial organization and
functioning of provincial and district courts, training judicial staff and
increasing public awareness of the law.
55.
According to the persons with whom the Working Group spoke, this means
that, as the courts are independent, it is quite natural for them to be
responsible for verifying the legality of detention from the time of arrest
until the trial proceedings, when the accused appears before a judge for the
first time.
56.
The Working Group, referring to article 9 of the International Covenant
on Civil and Political Rights recently ratified by Viet Nam, wondered about
the compatibility of the role of the public prosecutors with the principles
governing the verification of the legality of detention laid down in
paragraphs 3 and 4 of article 9:
"3.
Anyone arrested or detained on a criminal charge shall be brought
promptly before a judge or other officer authorized by law to exercise
judicial power ...
4.
Anyone who is deprived of
be entitled to take proceedings
may decide without delay on the
release if his detention is not
his liberty by arrest or detention shall
before a court, in order that that court
lawfulness of his detention and order his
lawful."
57.
The Working Group took the view that, however real the people’s
prosecutors’ guarantees of independence, they were not yet such - despite the
reform of 1960 - that they could be likened (equivalent guarantees theory) to
those pertaining to the courts, for the following reasons:
(a)
Firstly, the people’s prosecutors’ office admittedly stressed the
independence of the Department of Public Prosecutions as regards the
Government by pointing out that the head of the Supreme Prosecution Department
was a member of parliament elected by the National Assembly; however,
regardless of its merits, this interpretation can nevertheless be qualified.
As the Constitution (art. 4 of which provides that: "the Communist Party of
Viet Nam, as the advance guard of the working class, the faithful
representative of the interests of the working class, of the working people
and of the nation as a whole, and as an adherent of Marxism-Leninism and of
the thoughts of Ho Chi Minh, is the driving force of the State and society.
All the Party’s organizations shall operate within the framework of the
Constitution and law"), provides for a political system based on the one-party
principle, the question of independence, although no longer relevant with
regard to the Executive, is still relevant with regard to the party in power;
(b)
Secondly, the lack of irremovability, which is one of the essential
attributes of judicial independence, must be taken into consideration;
(c)
Finally, the fact that the remedy available to an individual during
pre-trial detention can be considered only by the people’s prosecutor, means
that it is closer to a discretionary hierarchical remedy than to a judicial
remedy, within the meaning of article 14 of the International Covenant on
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