The arrestee, the person executing the arrest warrant and the witnesses must sign the minutes. If anyone has a different opinion or disagrees with the content of the minutes, they have the right to record it in the minutes and sign. The temporary detention of the arrested person's objects and documents must be carried out in accordance with the provisions of this Code. Clause 2 stipulates: When handing over and receiving the arrested person, the two parties must make a record. In addition to the provisions in Clause 1, Article 84, the handover record must also clearly state the handover of the minutes of taking statements, objects and documents collected, the condition and health of the arrested person and all incidents that occurred during the handover. With such provisions, the law has listed relatively complete conditions, contents, requirements... of the minutes. However, this is only a necessary condition but not a sufficient condition; the new Law only sets out regulations from the perspective of ensuring the rights of the State but has not considered it from the perspective of ensuring the rights of the arrested person. Therefore, the minutes of arrest need to be supplemented with "the minutes must be made in two copies and the arrested person must be given one copy" to avoid loss, mishandling, and arbitrariness by the subject conducting the proceedings and to show respect for the arrested person.
+ Article 85 on notification of arrest stipulates: The person issuing the arrest warrant and the investigation agency receiving the arrested person must immediately notify the family of the arrested person, the ward or town authorities, or the organization or agency where the person resides or works. If the notification obstructs the investigation, after that obstruction is no longer present, the person issuing the arrest warrant and the investigation agency receiving the arrested person must immediately notify. To ensure that legal provisions are clear, convenient for application and to ensure the rights of the arrested person, the Law needs to specify more clearly which cases are considered obstructing the investigation and which cases are not obstructing the investigation in order to notify the family of the arrested person according to legal provisions on arrest.
3.1.3. Perfecting regulations on the legal status of arrested persons during the investigation phase of criminal cases.
Human rights, especially the human rights of those arrested, detained, and imprisoned in criminal proceedings, are always a topic of primary concern for all countries in the world. The rights of arrested persons have been mentioned very early in international human rights documents such as: the United Nations Declaration on Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights. The above documents consistently acknowledge that no one shall be arbitrarily arrested, detained, or exiled. The human rights of arrested persons are recognized and guaranteed.
The current Constitution of Vietnam also stipulates: “No one shall be arrested without a decision of the People's Court, a decision or approval of the People's Procuracy, except in cases of flagrante delicto. The arrest, detention and custody of persons shall be prescribed by law”. Thus, the 2013 Constitution has created a basic legal framework for arrested persons to have basic rights according to the law. The necessary issue now is to specifically stipulate the legal rights of arrested persons to ensure the exercise of their human rights. For that reason, we propose that a number of basic rights of arrested persons should be specifically reflected in the Criminal Procedure Code (amended) to comply with the requirements of ensuring their human rights. Those rights may include:
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- The right to hear, receive arrest warrants, decisions approving arrest warrants, read arrest records... This is the first right that an arrested person needs to be respected. It is reasonable that for a person subject to preventive arrest measures, their basic human rights are affected, including the right to personal freedom. At the same time, the measure of arrest is also a measure that can affect the health, life, and freedom of the arrested person. Therefore, the
Arrests must be carried out in accordance with legal procedures, by competent state agencies authorized by the Criminal Procedure Law to issue arrest warrants or approve arrest warrants. The above decisions show that the arrests are in accordance with the law, avoiding the situation where the arrested person is also arrested by subjects who do not have the right to arrest. Therefore, the arrested person must have the right to hear and receive the temporary detention order, emergency arrest order, decision approving the temporary detention order, emergency arrest order, and wanted decision. In addition, the arrested person must be given a record of the arrest, because the arrest process may violate procedural law, but if the record does not reflect the truth, the arrested person will have no evidence to file a lawsuit later.
- The right to know the reason for being arrested: this is also an important right of the arrested person. The right to know the reason for being arrested means that the arrested person is informed of the reason for being arrested by the subjects who issued the arrest warrant. Usually, the reason for being arrested is stated in the document called the arrest warrant. This also shows the legality of the arrest.
- The right to self-defense and to have others defend them: Clause 4, Article 31 of the 2013 Constitution stipulates very specifically: "A person who is arrested, detained, temporarily detained, prosecuted, investigated, prosecuted, or tried has the right to self-defense, to have a lawyer or another person defend him/her" . Thus, it can be seen that the new Constitution has expanded the scope of subjects guaranteed the right to defense, not only defendants have the right to defense as stipulated in the old Constitutions, but right from the time a person is arrested, the right to self-defense, or to have a lawyer defend them, is guaranteed by the law with the highest legal value, the Constitution. This means that in criminal proceedings in general as well as in the investigation stage in particular, the right to defense, to be defended allows the arrested person to have legal, spiritual, knowledge, and belief support to publicly stand up to defend himself/herself against the accusation of guilt of the accuser. This affirms
The law stipulates that the arrested person has the right to defend himself or herself or to have someone else defend him or her, and at the same time stipulates the responsibility of the prosecution agency, including the investigation agency, to ensure that the arrested person exercises the right to defense, such as explaining to them the right to defense, creating conditions for the arrested person to present documents, evidence, present statements proving his or her innocence, and explaining and creating conditions for the arrested person to have a defense attorney, requesting the appointment of a defense attorney in prescribed cases, creating conditions for the defense attorney to exercise the procedural rights (issuing a defense attorney certificate, notifying the defense attorney of the time and place of questioning the suspect, serving the decisions of the prosecution agency, etc.). In cases where the arrested person is a minor or a person with mental or physical disabilities, it is mandatory to have a defense attorney for them, even in cases where they do not hire a defense attorney. In this case, the responsibility for appointing a defense attorney belongs to the prosecution agency. In addition, clearly defining the rights of arrested persons to defend themselves or have others defend them also aims to ensure that the proceedings in general and the investigation in particular must strictly comply with the provisions of the law, the accusation against the arrested person must have a solid basis and be in accordance with the law, not to let criminals escape and not to wrongfully accuse innocent people. Therefore, defining the rights of arrested persons to defend themselves or have others defend them is very necessary.
- The right to material and spiritual compensation and the right to have one's honor restored when illegally arrested. This is also a basic human right of the arrested person that needs to be respected. In fact, the application of wrongful arrest measures does happen, and in the current period, there are more and more wrongful arrests. When wrongful arrests are applied, the arrested person needs to be compensated materially, spiritually, and have his honor restored for the period of his wrongful arrest. Currently, according to the regulations
According to the Law on State Compensation Liability, the competent authority that wrongfully arrests or arrests must compensate and restore the honor of the wrongfully arrested or arrested person. Therefore, it is necessary to stipulate this right in the Criminal Procedure Code.
Thus, the rights analyzed above are important rights of the arrested person. In fact, the 2003 Criminal Procedure Code has not yet stipulated a separate article on the rights of the arrested person. In order to institutionalize the Party and State's viewpoint on the human rights of the arrested person as stipulated in the 2013 Constitution and at the same time better ensure the rights of the arrested person in criminal proceedings in general, and the investigation stage in particular, it is recommended that the Criminal Procedure Code continue to stipulate a separate article on the legal status of the arrested person, specifically as follows:
Article….: The person arrested
“1.……………………………………..
2. The arrested person has the right to:
a) To hear and receive temporary detention and emergency arrest orders, decisions approving temporary detention and emergency arrest orders, wanted decisions and arrest records;
b) To know the reason for his arrest;
c) Self-defense or having someone defend him/herself;
d) Be compensated for material and mental damages and have your honor restored when being illegally arrested;
3. The arrested person has the obligation to comply with the arrest warrant and comply with other provisions of the law on arrest.
3.2. Other solutions
3.2.1. Strengthening inspection and control work
Strengthening the activities of prosecution and supervision of criminal proceedings, detecting serious violations of procedural procedures, infringing on the human rights of arrested persons to have procedural remedies such as protests, recommendations, requests for the Investigation Agency and other agencies assigned to conduct some investigation activities to remedy the violations. In the investigation and prosecution activities, the activities of the Procuracy to ensure the human rights of persons subject to preventive measures are very important, in addition, there are a number of other activities such as handling complaints and denunciations... It is necessary to pay more attention to checking the culture of investigation, procedural skills to have notices of experience to improve the quality of procedural activities, enhance the guarantee of human rights of arrested persons.
3.2.2. Raising awareness and qualifications of Investigators and Prosecutors in ensuring human rights of arrested persons
As we have analyzed above, ensuring the human rights of arrested persons depends largely on the perfection of legal provisions and guidance on the consistent application of the law. However, no matter how specific the law is, its effectiveness depends largely on the viewpoint and perception of the person applying the law in each specific case. In particular, in the Criminal Procedure Code, whether many provisions are applied or not depends on the subjective assessment of the competent person.
Therefore, it can be said that enhancing awareness, professional expertise, and cultural behavior for the Head, Deputy Head, Investigator of the Investigation Agency, Director, Deputy Director, and Prosecutor of the Procuracy is an important solution to ensure investigation activities and meet the requirements of respect for the law.
respect and ensure human rights in general and the rights of detainees in particular. In our opinion, to implement this solution, the following measures need to be taken:
- Strengthen training, fostering, and professional training, especially procedural skills for the team of investigators and prosecutors. Those conducting proceedings must have a correct and full awareness of legal provisions related to ensuring special human rights of people subject to preventive measures, including arrest;
- Strengthen political and ideological education, legal policies, especially the State's humanitarian policies towards criminals, and the viewpoint of ensuring human rights in the socialist rule of law State for officials of prosecution agencies at all levels;
- Along with improving the qualifications and capacity of litigants, our State also needs to take measures to strengthen the team of lawyers in terms of organization, quantity and quality, enhance the position of lawyers in criminal proceedings, and ensure the important role of lawyers in protecting the human rights of arrested persons.
3.2.3. Perfecting the responsibility regime for prosecution agencies
Enhancing the responsibility of the prosecution agencies in general and the investigation agencies in particular towards the participants in the proceedings, including the arrested person, is an important solution to ensure the implementation of the rights of the arrested person. Perfecting the responsibility regime of the prosecutor is also a necessary solution to ensure the human rights of the arrested person during the investigation phase.
- First of all, it is necessary to perfect the regulations on criminal liability for acts of violating human rights in criminal proceedings in general.
in the investigation phase in particular. In our opinion, it is necessary to add to Chapter XXII of the Penal Code an article regulating the crime of irresponsibility causing serious consequences in procedural activities.
At the same time, it is necessary to boldly prosecute criminal liability in cases where due to lack of responsibility, people are wrongly prosecuted, especially those who are arrested without grounds. Only the above strict regulations can enhance the responsibility of the prosecutor in ensuring human rights. Practice in recent years has shown that due to lack of responsibility of the prosecutor, many cases of innocent people being wrongly tried have occurred, causing very serious material and spiritual consequences for citizens (Bui Minh Hai case, Nguyen Si Ly case, etc.). Prosecuting criminal liability in these cases will have a great educational, deterrent and preventive effect;
- Gradually improve the law on compensation for damages in cases of injustice and mistakes in criminal proceedings. Article 26 of the 2009 Law on State Compensation Liability stipulates in relatively detail the cases in which the State is responsible for compensating for damages in criminal proceedings. Article 27 of the Law stipulates cases in which compensation is not allowed. This is a huge step forward in terms of legislation compared to Resolution 388/NQ-UBTVQH. However, from the perspective of ensuring the human rights of the arrested person, in our opinion, this issue needs to be further studied in the direction that the State is responsible for compensating for damages not only in cases of injustice, but also in cases of wrongful investigation, prosecution, and trial causing damage to citizens, including cases of illegal arrest;
- Perfecting the disciplinary regime for acts of violating human rights in criminal proceedings. The acts of competent persons conducting criminal proceedings