The more attention is paid to ensuring the basis, order, authority, the higher the rate of arrest and detention after criminal proceedings.
Table 2.2: Situation of applying temporary detention measures
Year 2009 | Year 2010 | Year 2011 | Year 2012 | Year 2013 | |
Total number of detainees | 135,012 | 126,807 | 139,511 | 138,802 | 135,073 |
Number solved | 98,709 | 87,772 | 95,483 | 93,195 | 89,098 |
In there: + Replace and cancel temporary detention + Tried to transfer to prison + Released for not guilty | 13,255 76,579 | 12,605 67,203 08 | 14,153 72,405 09 | 15,831 66,971 02 | 13,879 62,888 |
+ Overdue detention | 374 | 1,399 | 822 | 387 | 1,015 |
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(Source: Supreme People's Procuracy )
The above data table shows:
- The number of people detained has been on a downward trend in the last two years. The number of people detained in 2012 decreased by 0.51% (138,802/139,511) compared to 2011. In 2013, it decreased by 2.69% (135,073/138,802) compared to 2012.
- The replacement and cancellation of detention measures have also been focused on by the THTT agencies. The rate of suspects and defendants whose detention measures have been canceled and replaced has increased over the years with the following rates: 2009: 13.4% (13,255/98,709); 2010: 14.36% (12,605/87,772); 2011: 14.8% (14,153/95,483); 2012:
16.98% (15,831/93,195); 2013: 15.6% (13,879/89,098).
- The quality of detention has been improved, the number of people detained after the Court declared them not guilty has decreased significantly.
2.2. Current status of human rights protection through measures to prevent and restrict freedom as prescribed by the Criminal Procedure Code
2.2.1. Advantages
BPNCs in TTHS have great significance in the fight against and
crime prevention, ensuring the effectiveness of this activity, ensuring the smooth operation of the criminal procedure agencies in the process of resolving criminal cases. At the same time, the BPNC also ensures democracy, respect for human rights, rights and legitimate interests of citizens stipulated in the Constitution such as the right to inviolability of the body, the right to protection of life and health, ... demonstrating the superiority of our State. In the 2003 Criminal Procedure Code, the provisions on BPNC have shown the viewpoint of protecting human rights in the application of these measures, such as:
- Regulations on the basis, order and procedures for applying BPNC, and authority to decide on the application of BPNC.
- Regulations on the Procuracy's approval of emergency arrest: Clause 4, Article 81 of the 2003 Criminal Procedure Code stipulates: "In all cases, emergency arrests must be immediately reported to the Procuracy of the same level in writing with documents related to the emergency arrest for approval" and the time limit for approval by the Procuracy is 12 hours from the time of receiving the request for approval and documents related to the emergency arrest. In case of necessity, the Procuracy must directly meet and question the arrested person before deciding whether to approve or not. In case the Procuracy does not approve the emergency arrest, the investigation agency must immediately release the arrested person. The 2003 Criminal Procedure Code has strictly regulated the approval of emergency arrests as above to ensure that the arrest in emergency cases is accurate, avoid the abuse of emergency arrests, and ensure and protect the legitimate rights and interests of the arrested person.
- The Criminal Procedure Code stipulates that arrests must be recorded in writing, which contributes to creating openness and transparency in the arrest process, and at the same time creates a legal basis to protect the rights of the arrested person.
- Prescribes what to do immediately after arresting or receiving a prisoner.
Arrest (Article 83 of the Criminal Procedure Code): To ensure timely investigation of the case, to ensure and protect the legitimate rights of the arrested person, the 2003 Criminal Procedure Code specifically stipulates the things to be done immediately after arresting or receiving the arrested person. These are:
+ After arresting or receiving a person arrested in an emergency or flagrant crime, the investigation agency must immediately take a statement and within 24 hours must issue a decision to temporarily detain or release the arrested person.
+ For wanted persons, after taking the statement, the investigating agency receiving the arrested person must immediately notify the agency that issued the wanted decision to come and receive the arrested person. After receiving the arrested person, the agency that issued the wanted decision must immediately issue a decision to stop the wanted person. In case it is deemed that the agency that issued the wanted decision cannot come and receive the arrested person immediately, after taking the statement, the investigating agency receiving the arrested person must immediately issue a decision to temporarily detain and immediately notify the agency that issued the wanted decision. After receiving the notification, the agency that issued the wanted decision with the authority to arrest for temporary detention must immediately issue a temporary detention order and send the temporary detention order approved by the Procuracy to the investigating agency receiving the arrested person. After receiving the temporary detention order, the investigating agency receiving the arrested person is responsible for immediately taking that person to the nearest temporary detention center.
This regulation clearly specifies what needs to be done after arresting or receiving an arrestee to avoid arbitrariness and prolonging the time of agencies in this activity.
- In addition, Article 85 of the Criminal Procedure Code also stipulates the notification of arrest, according to which the person issuing the arrest warrant and the investigating agency receiving the arrested person must immediately notify the family of the arrested person, the commune, ward or town authorities or the agency or organization where the person resides or works. If the notification hinders the investigation, the notification must be made immediately after the hindrance is no longer present.
- According to the provisions of Clause 3, Article 86 of the 2003 Criminal Procedure Code, the time limit
The time limit for sending the decision on temporary detention to the Procuracy has been reduced from 24 hours (as prescribed in the 1988 Criminal Procedure Code) to 12 hours. This provision has strengthened the mechanism for protecting the human rights of detainees because when the Procuracy receives the decision on temporary detention early, if it discovers that the decision is illegal or unnecessary, the Procuracy will promptly issue a decision to cancel the decision on temporary detention and immediately release the detainee, thereby promptly protecting human rights, rights and legitimate interests of citizens.
- The Criminal Procedure Code stipulates: “1. For a defendant who is being detained and sentenced to imprisonment but by the end of the trial the detention period has expired, the Panel of Judges shall issue a decision to detain the defendant to ensure execution of the sentence, except for the cases specified in Clauses 4 and 5, Article 227 of the Criminal Procedure Code” [30, Article 228]. Thus, in the case where the defendant is being detained and sentenced to imprisonment, if he/she is not eligible for a suspended sentence, and the prison term is equal to or shorter than the detention period, the Panel of Judges shall issue a decision to detain the defendant to ensure execution of the sentence. There are also specific provisions, creating a legal basis for the Court to detain the defendant immediately after sentencing. According to the provisions of Clause 2, Article 228, if the defendant is not detained but sentenced to imprisonment, the Panel of Judges can only decide to immediately detain the defendant on the condition that there is a basis to believe that the defendant may escape or continue to commit crimes - these are specific legal bases for the Court in detaining the defendant after sentencing. Clause 3 of this article also specifically stipulates the period of detention after sentencing is 45 days, this provision ensures the uniform application of the law and at the same time avoids arbitrary extension of the detention period, violating the defendant's human rights.
- People subject to temporary detention and imprisonment are not considered guilty, but their freedom and some other civil rights are restricted. However, they still have human rights protected by law. Therefore, Articles 89 and 90 of the 2003 Criminal Procedure Code have specific provisions on the detention regime as well as the care of relatives and the preservation of their property.
2.2.2. Some limitations and shortcomings
Along with the advantages of the BPNCs restricting freedom according to the provisions of the Law on Criminal Procedure of Vietnam mentioned above, in the process of researching the regulations as well as the application of BPNCs restricting freedom, from the perspective of protecting human rights, we found that there are still some limitations. Specifically:
First: on arrest measures
- Arrest is a form of criminal procedure that, when applied, will directly affect the right to personal freedom of a person - one of the basic rights of a person and a citizen recognized and protected by the Constitution. However, in the 2003 Criminal Procedure Code, there is no specific provision regulating the rights of persons subject to this measure, but the rights of persons subject to arrest are only scattered in a number of specific provisions. In our opinion, these provisions do not fully ensure the rights of persons subject to arrest, so the issue of protecting the rights of persons subject to arrest in criminal procedures will be difficult to implement fully and consistently.
- Arresting people in emergency cases shows the urgency of crime prevention, the urgency is shown in the fact that: if not immediately arresting people with dangerous behavior to society, that person will cause serious damage to the State, to society, infringe on the life, health, property rights of citizens or hinder investigation, prosecution, trial, and evade the law. This BPNC has had great effects in the fight against crime, contributing to timely prevention of dangerous crimes that violate national security, infringe on the life and property of citizens. However, the regulation and application of this measure in practice must also be based on specific, clear, necessary grounds, not because
emergency arrest without regard to the aspect of protecting human rights. According to Article 81 of the Criminal Procedure Code, one of the grounds for emergency arrest is:
b. When the victim or a person present at the scene of the crime sees with his own eyes and confirms that the person who committed the crime is the one who committed it and it is deemed necessary to immediately prevent that person from escaping; c. When there are traces of the crime on the person or at the residence of the person suspected of committing the crime and it is deemed necessary to immediately prevent that person from escaping or destroying evidence [30, Article 81].
So in which cases is it necessary to immediately prevent that person from escaping or destroying evidence? With the above regulations, determining which cases require emergency arrest depends on the subjective will of the THTT people and in reality there is a situation of abusing emergency arrest measures, leading to emergency arrests that must be released after being released because there is not enough basis for criminal proceedings. Specifically: in 2009 there were 405 cases, in 2010 there were 469 cases, in 2011 there were 560 cases, in 2012 there were 608 cases and in 2013
There are 586 cases [36].
- According to the provisions of Article 84 of the 2003 Criminal Procedure Code, "The person executing the arrest warrant must make a record in all cases", however, the law does not stipulate that the arrested person has the right to receive the Record of arrest. This lack of provision has created inequality between the person executing the arrest warrant and the person subject to the arrest warrant, while other BPNCs and the person subject to the arrest warrant all have the right to receive the warrant from the person with authority to issue the warrant.
- According to the provisions of the Criminal Procedure Code:
The person issuing the arrest warrant and the investigating agency receiving the arrested person must immediately notify the family of the arrested person, the commune, ward or town authorities or the agency or organization where the person resides or works. If the notification obstructs the investigation, then after such obstruction
no longer, the person issuing the arrest warrant, the Investigation Agency receiving the arrested person must immediately notify [30, Article 85].
This is one of the rights of the arrested person - however, the law does not specifically stipulate how the notification must be carried out and within what time limit the notification must be made, in which cases it hinders the investigation, so determining cases of hindering the investigation is mainly due to the subjective consciousness of the investigator, at the same time, the regulation of the time limit is arbitrary, without a specific quantification of the time period as above will lead to arbitrariness and prolongation from the authorities, in many cases directly affecting the rights and interests of citizens.
Second: About temporary detention measures
- Article 86 of the 2003 Criminal Procedure Code stipulates the measure of temporary detention, but does not specify the basis for applying this measure, but only states the subjects that "may" be subject to this measure, including: people arrested in emergency cases, caught red-handed, criminals who confess, surrender or those arrested under a wanted decision. Therefore, in reality, most people arrested in emergency cases, caught red-handed, surrender or surrender are subject to temporary detention, although according to the provisions of the law, it "may be applied". The lack of specific provisions for the application of temporary detention is the reason why agencies and people in charge of criminal proceedings abuse the application of this measure, leading to arrests and temporary detentions without sufficient basis for criminal prosecution and release, violating the inviolability of the human body. Specifically: in 2009 there were 2,722 cases of temporary detention after release, in 2010 there were 2,150 cases, in 2011 there were 2,723 cases, in 2012 there were 2,742 cases and in 2013 there were
2,246 cases [36].
- According to the provisions of Clause 3, Article 86 of the 2003 Criminal Procedure Code, the Procuracy has the right to issue a decision to cancel the detention order and immediately release the detained person.
Detain if the detention is found to be illegal or unnecessary. This provision aims to ensure and protect human rights, and avoid unnecessary or widespread detention. However, the law does not stipulate that the agency that issued the detention decision must transfer documents related to the detention to the Procuracy, so in reality, the agencies that issued the detention decision only transfer the detention decision to the Procuracy. With the only document being the detention decision, it is very difficult for the Procuracy to determine whether the detention is legal or necessary. And this issue can only be determined by the Procuracy when considering the approval of the extension of the detention. Therefore, in practice, there are many cases of detention that are not properly grounded or unnecessary but are only released when the Procuracy studies the file requesting approval of the extension of the detention and finds it to be inconsistent with regulations, so it refuses to approve the extension of the detention.
On the other hand, the law does not specify which cases are “necessary” and “special” for consideration of extending the detention period, so the determination of these cases will be decided by the competent THTT agencies and people, and this is also a condition for THTT agencies to not be active in the process of collecting evidence documents as a basis for whether to criminally prosecute the arrested or detained person or not. This will lead to inconsistent application and is one of the causes of human rights violations.
In the process of applying the BPNC, the situation where the Procuracy has to issue a decision to cancel the decision to temporarily detain and not approve the decision to extend the temporary detention of the Investigation Agency still occurs, specifically: in 2009, there were 329 cases where the Procuracy decided to cancel the temporary detention and 123 cases where the Procuracy did not approve the extension of the temporary detention, in 2010, there were 219 cases where the Procuracy decided to cancel the temporary detention and 99 cases where the Procuracy did not approve the extension of the temporary detention, in 2011, there were 272 cases where the Procuracy decided to cancel the temporary detention.