Concept of Detainees and Guarantee of Human Rights of Detainees

ensure the safety and confidentiality of correspondence, telephones, telegrams, freedom of movement and residence;

- Economic, cultural and social rights include the right to education, labor, freedom of business, right to legal property ownership, right to invention, right to protection of health, right to protection of marriage and family, rights of special subjects such as war invalids, sick soldiers, families of martyrs, the elderly, children, and disabled people without support;

In Vietnam, there are many experts and research institutions who have defined human rights, but they are not completely the same. However, in general, human rights are often understood as natural, inherent and objective human needs and interests that are recognized and protected in national laws and international legal agreements. In addition to the above concepts, in Vietnam, the term human rights is often used as human rights (according to Sino-Vietnamese). Both have the same connotation and correspond to the term "Human rights" in English, which is translated as human rights.

According to the Vietnamese Dictionary, “human rights” are “human rights” which are generally understood as innate rights, inherent to humans, which if not enjoyed, humans cannot live as humans. Human rights are made up of two elements: one is the natural privileges that humans have and only humans have; the other is the natural rights that are recognized and regulated by law. Human rights are the unity of two objective and subjective elements recognized in the laws of each country and international law.

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1.1.1.2. Guaranteeing human rights

The study shows that there is a very dialectical relationship between human rights and human rights guarantees, they have a great impact on each other; the guarantee of human rights has a direct and decisive impact on the implementation of other human rights. Losing human rights means losing all other rights such as political rights, the right to vote, the right to association; the right to personal freedom, the right to freedom of movement, the right to work, the right to study... Besides, human rights are also

must be guaranteed equally, without distinction of which right is more important than another.

The United Nations adopted the Declaration on Human Rights Defenders on December 9, 1998: “Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms” . This is the first document of the United Nations to acknowledge the important role and legitimacy of activities to ensure human rights, protect human rights and the requirements of the international community and each country.

Ensuring human rights is not only the right and responsibility of every individual in society, but also the role of the state as the main responsible entity in promoting and protecting human rights by creating mechanisms suitable to the conditions and circumstances of the state to better ensure human rights in practice.

In the Socialist Republic of Vietnam, people are placed at the center of all economic and social policies and are given all conditions for development. The 2013 Constitution devotes Chapter 2 with 36 articles to human rights and citizen rights. Regarding the issue of ensuring human rights and citizen rights, Article 14 of the Constitution stipulates: “In the Socialist Republic of Vietnam, human rights and citizen rights in the political, civil, economic, cultural and social fields are recognized, respected, protected and guaranteed in accordance with the Constitution and the law. Human rights and citizen rights may only be restricted in accordance with the provisions of law in necessary cases for reasons of national defense, security, social order and safety, social morality and public health” . Thus, human rights have been guaranteed by the Constitution and the law.

1.1.2. Concept of detainees and ensuring human rights of detainees

1.1.2.1.Concept of detainee

Detention is one of the preventive measures that the prosecutor and the prosecuting agency apply to a person who has committed a dangerous act.

dangerous to society as defined by the Penal Code as a crime in order to promptly prevent crimes or when there is evidence that they will cause difficulties for investigation, prosecution, trial or will continue to commit crimes, as well as when it is necessary to ensure the execution of the judgment, within the scope of their procedural authority or the competent person decides to apply temporary detention measures to a specific person according to the procedural order of the Penal Code to isolate them for a certain period of time.

Although the 2015 Penal Code has been approved by Resolution No. 144 /2016/QH13 of the 13th National Assembly of the Socialist Republic of Vietnam on June 29, 2016 on postponing the implementation, the 2015 Penal Code has added provisions on criminal liability for commercial legal entities, which is a new content that fundamentally changes the traditional criminal policy. However, the measure of temporary detention only applies to a specific individual, which is a human being. Therefore, the measure of temporary detention is only applied to a specific person, not to a legal entity;

A detainee is one of the participants in the proceedings who has a central position in the process of resolving a case because they are the ones suspected by the prosecuting agency or arrested in an emergency, caught red-handed, a person who confessed, surrendered or was arrested under a wanted notice and that person is subject to temporary detention measures by a competent authority. Thus, when applying the preventive measure of temporary detention, the detainee must meet two conditions:

- In terms of content, a person is detained when there is reason to believe that he is preparing to commit a very serious crime or an especially serious crime; a person who has committed a crime that another person present at the scene of the crime has seen with his own eyes and confirmed that he is the person who committed the crime; a person who finds traces of a crime on his person or place of residence and needs to immediately prevent that person from escaping or destroying evidence; a person who is discovered committing a crime, a person who is wanted, or a person who confesses after committing a crime.

In cases of emergency arrest, arrest due to a crime caught in the act, a person who confesses or surrenders, or a person who is detained due to suspicion of committing a crime but has not yet been prosecuted by a competent authority. Cases of temporary detention of an arrested person

According to the wanted order, they may be people who have been prosecuted for criminal liability or have been convicted but have escaped and are wanted. When the competent authority decides to temporarily detain that person for a short period of time to initiate criminal proceedings, prosecute the accused for the person caught red-handed, make an emergency arrest or hand over to the competent authority for the wanted person.

According to the provisions of Articles 86 and 87 of the 2003 Criminal Procedure Code, the maximum period of detention shall not exceed 3 days. The decision on temporary detention must be sent to the People's Procuracy but does not require the People's Procuracy's approval. In case of necessity to extend, the temporary detention period may be extended twice, each time not exceeding 3 days, and the decisions to extend the temporary detention must be approved by the People's Procuracy.

- Regarding form: The person being detained must have a decision on temporary detention from a competent authority as prescribed in Article 86 and Article 81 of the current Criminal Procedure Code. The Chief, Deputy Chief of the Investigation Agency, the commander of an independent army at the regimental level and equivalent, the commander of a border guard station on an island or border, the commander of an aircraft or ship, or the commander of a Coast Guard region are the persons with the authority to issue a decision on temporary detention.

Thus, it can be understood that the detainees are the above-mentioned persons who are subject to isolation measures by competent authorities in order to prevent them from continuing to commit crimes, obstructing investigation activities or escaping, including ensuring the execution of the sentence after trial.

Although not yet legally effective, Clause 1, Article 59 of the 2015 Criminal Procedure Code stipulates that "A person under temporary detention is a person who is detained in an emergency, arrested in a case of a crime caught in the act, arrested under a wanted decision, or a person who confesses or surrenders and for whom a temporary detention decision has been issued" . Article 3 of the Law on the enforcement of temporary detention and temporary imprisonment stipulates: "A person under temporary detention is a person who is being managed at a detention facility during the period of temporary detention or extended detention according to the provisions of the Criminal Procedure Code" . Thus, regarding the nature and content of the concept of a person under temporary detention, each branch of law has different views on the purpose, but it can be understood in general terms: "A person under temporary detention is a person whose freedom is restricted for a certain period of time".

a certain period of time due to arrest in case of flagrante delicto, emergency, wanted, surrender or self-confession” .

1.1.2.2. Ensuring human rights of detainees

The issue of respecting and ensuring the human rights of detainees has been mentioned as a principle in the Criminal Procedure Code as well as regulations on their regime when detained; However, the 2003 Criminal Procedure Code only stopped at "Respecting and protecting the basic rights of citizens", but the 2015 Criminal Procedure Code has been more specific in "Respecting and protecting human rights, rights and legitimate interests of individuals" ; together with the Law on Enforcement of Temporary Detention and Imprisonment, human rights are respected and protected more specifically, not only meeting the requirements of judicial reform and administrative reform in the new situation but also better ensuring the rights and legitimate interests of detainees in accordance with the provisions of the 2013 Constitution of the Socialist Republic of Vietnam as well as international conventions that Vietnam has signed. Therefore, respecting, protecting and ensuring human rights and citizens' rights have been stipulated in the Constitution; significantly contribute to the realization of the goal: "Building a clean, strong, democratic, strict judiciary, protecting justice, gradually modernizing, serving the people, and serving the Socialist Republic of Vietnam" .

1.1.3. Distinguishing between human rights, the rights of detainees and the human rights of detainees

Human rights are the dialectical unity of “natural rights” and “social rights”, and therefore are necessarily protected by law. Human rights are sacred and inviolable. Respect for human rights is one of the characteristics of a state governed by the rule of law. The basis of the regulations on detainees comes from the necessity of ensuring that all cases of restricting human rights must fully satisfy the legal basis, so the detention and the legality of the procedure for detainees must be guaranteed.

The human rights of detainees are a broader concept than the concept of human rights of detainees. The human rights of detainees include the human rights (in general) of detainees (when participating in criminal proceedings).

like other citizens) and their judicial rights when participating in proceedings as detainees (procedural rights).

Rights of detainees. First is the right to protect oneself (self-protection or protection by others) from unjustified detention. Detainees must be informed of the reason for their detention because detention is a procedural consequence of being caught red-handed, being urgently arrested, being wanted, surrendering or self-confession; therefore, detainees have the right to know why they were caught red-handed, being urgently arrested, the decision to be wanted or their self-confession or self-confession. At the same time as the right to know the reason for detention, detainees have the right to carry out procedural acts prescribed by law (by themselves or through others) to reject the grounds for detention that the competent authority has determined to issue the detention decision.

A detainee has the right (by himself or through someone else) to prove, declare, present documents, objects, request verification... to refute the suspicion of a crime against him, as well as the right to refute the grounds for emergency arrest, red-handed arrest or wanted warrant without basis or without proper procedures.

A detainee has the right to defend himself against illegal detention. In addition to having grounds, the detention of a detainee must be carried out in accordance with the correct order, procedure, authority and time limit.

The rights of detainees are procedural powers (judicial powers) granted and guaranteed by the State to protect detainees from illegal arrest and to ensure the implementation of procedural rights for detainees.

As a human being, when participating in criminal proceedings, when being detained, the detainee has the right to respect and ensure the human rights prescribed by law, except for cases where the Criminal Procedure Code provides otherwise in order to meet the requirements and tasks of criminal proceedings. However, it is necessary to acknowledge the fact that in Vietnamese criminal proceedings, the issue of ensuring the human rights of participants in the proceedings, including detainees, has not received much attention. The provisions of the current criminal procedure law have not mentioned much about the aspect of human rights. Rights of detainees

The provisions in criminal procedure law are mostly mentioned in terms of procedural rights and rarely mentioned in terms of human rights and civil rights.

Ensuring the human rights of detainees is to ensure that these subjects can fully and legally exercise the rights mentioned in the provisions of the Criminal Procedure Code. This ensures that criminal proceedings are consistent with the basic principles of current criminal proceedings.

1.2. Human rights of detainees in Vietnamese criminal procedure law

1.2.1. Human rights and civil rights of detainees

Human rights and civil rights of detainees are stipulated in the current criminal procedure law (BLTTHS 2003) including:

- The right to respect and protect the fundamental rights of citizens (Article 4), according to which the prosecuting agencies and prosecutors, within the scope of their responsibilities, must respect and protect the legitimate rights and interests of citizens, regularly check the legality and necessity of the measures applied, promptly cancel or change such measures, if they are found to violate the law or are no longer necessary.

- The right to equality before the law (Article 5), according to which in criminal proceedings all citizens are equal before the law, regardless of ethnicity, gender, belief, religion, social class, or social status; anyone who commits a crime will be punished according to the law.

- The right to physical inviolability (Article 6), according to which no one shall be arrested without a court decision, a decision or approval of the People's Procuracy, except in cases of flagrante delicto. Arrest and detention must comply with the provisions of the Criminal Procedure Code. All forms of persecution and torture are strictly prohibited.

- The right to protection of life, health, honor, dignity, and property (Article 7), according to which citizens have the right to be protected by law regarding their life, health, honor, dignity, and property. Any act of infringement upon life, health, honor,

Dignity and property shall be handled according to law. The competent authority conducting the proceedings must apply necessary measures to protect the participants in the proceedings and their relatives when their life, health, or honor, dignity and property are threatened.

- The right to inviolability of residence, safety and confidentiality of correspondence, telephone and telegrams (Article 8), according to which no one is allowed to infringe upon the residence, safety and confidentiality of correspondence, telephone and telegrams of citizens. The search of residence, search, temporary detention and seizure of correspondence and telegrams must comply with the provisions of the Criminal Procedure Code.

- The right to be presumed innocent (Article 9), according to which no one shall be considered guilty and subjected to punishment without a final judgment of guilt by a Court that has come into legal effect.

- Right to defense (Article 11), according to which the detainee has the right to defend himself or herself or to have someone else defend him. The investigation agency, the People's Procuracy, and the Court have the duty to ensure that the detainee exercises his or her right to defense according to the provisions of the Criminal Procedure Code.

- The right to compensation for damages and restoration of honor and rights when wrongly accused (Article 30), accordingly, a person who is wrongly accused by a competent person in criminal proceedings has the right to compensation for damages and restoration of honor and rights. The competent authority in criminal proceedings that has caused injustice must compensate for damages and restore honor and rights to the wrongly accused person; the person who caused the damage is responsible for compensating the competent authority according to the provisions of law.

- The right to complain and denounce in criminal proceedings (Article 31), according to which citizens, agencies and organizations have the right to complain, citizens have the right to denounce illegal acts in criminal proceedings by agencies and persons with authority to conduct criminal proceedings or any individual belonging to those agencies. Competent agencies must promptly receive, consider and resolve complaints and denunciations in accordance with the law; notify in writing the results of the settlement to the complainant and denouncer and take remedial measures. The order, procedures and authority to resolve complaints and denunciations are prescribed by the Criminal Procedure Code.

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