necessary, suitable for effective operation. To meet this requirement, the technical facilities in the TTHS must always be invested in and upgraded in both quantity and quality. In particular, it is necessary to pay special attention to the modernity of scientific and technical means, because today's criminals are very sophisticated and cunning, often using high-tech scientific means to commit crimes.
1.3. Ensuring human rights in arrest, detention and temporary imprisonment according to international law and criminal procedure laws of some countries in the world and values that can be applied in Vietnam
1.3.1. Ensuring human rights in arrest, detention and temporary imprisonment according to international law
Human rights in arrest, detention and temporary detention are a set of rights belonging to the group of civil and political rights aimed at affirming human honor and dignity in all circumstances, protecting individuals from arbitrariness and abuse of power by agencies and competent persons in arrest, detention and temporary detention activities.
Arrested, detained, and remanded persons are those deprived of liberty when subjected to forced labor in accordance with the provisions of the Law on Criminal Procedure. The protection of human rights of those deprived of liberty occupies a very important position in international human rights documents. The fundamental rights of those deprived of liberty are protected in the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966) and other documents such as the “Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment” adopted by the United Nations General Assembly in Resolution 43/173 dated December 9, 1998, and the “United Nations Rules for the Protection of Juveniles Deprived of their Liberty” adopted by the United Nations General Assembly in Resolution 45/113 dated December 14, 1990. In general, those deprived of liberty are guaranteed the following rights:
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Some Provisions of International Human Rights Law on Ensuring Human Rights in Criminal Trials
- The right to be protected from arbitrary arrest and detention
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly on December 10, 1948 at the Palais de Chaillot in Paris. This is considered an important international legal document to determine the basic human rights that are respected and protected, including the right to personal liberty, and is the first basis for member states to apply legal provisions to an individual, including the application of measures of arrest, detention, and temporary detention for criminals in criminal proceedings. The right to be protected from arbitrary arrest and detention is first stipulated in Article 9 of the Universal Declaration of Human Rights, which states: "No one shall be subjected to arbitrary arrest, detention or exile."
On December 16, 1966, the United Nations General Assembly adopted the International Covenant on Civil and Political Rights, in Article 9 of this convention, it specified Article 9 of the Universal Declaration of Human Rights on the protection of the right to liberty and inviolability of the person with quite detailed provisions, accordingly: Everyone has the right to liberty and security of person; no one shall be subjected to arbitrary arrest or detention; no one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Anyone arrested or detained on a criminal charge shall be brought promptly before a court or other authority authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release; It shall not be the general rule that a person awaiting trial be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the law, and, if occasion arises, for execution of the sentence. Any person who is
Any person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is unlawful. Anyone who has been the victim of unlawful arrest or detention shall be entitled to compensation.
In addition to the contents specifically stated above, in General Comment No. 8 adopted at the 16th session in 1982, the Human Rights Committee
has further explained some contents related to Article 9 of this Convention,
The important points can be summarized as follows: The right to liberty and personal security applies to all persons deprived of liberty, including cases of crime or mental illness, vagrancy, drug addiction, or for educational purposes, immigration control... The period of detention depends on the laws of the member states, however, according to the Committee, the period of detention should not exceed a few days, and the period of detention should comply with two rules: The accused must be tried within a reasonable time or released and detention must be considered exceptional and for as short a time as possible. In the case of using temporary detention as a preventive measure, this must not be done arbitrarily but must be based on procedures prescribed by law, while ensuring the right to information of the accused, the right to have the court decide on the legality of the detention, and the right to request compensation of the accused in case of wrongful conviction.
- The right to be protected from being subjected to torture or other cruel, inhuman or degrading treatment or punishment
This right is stipulated in Article 5 of the Universal Declaration of Human Rights and is specified in Article 7 of the International Covenant on Civil and Political Rights. It states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
inhuman or degrading treatment or punishment; no one shall be subjected to medical or scientific experimentation without his free consent. In addition, the issue of anti-torture is also mentioned in a number of other international treaties on human rights, in particular the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
- The right to humane treatment and respect for the dignity of persons deprived of their liberty
This right is provided for in Article 10 of the International Covenant on Civil and Political Rights. Accordingly, persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Paragraph 2 of Article 10 stipulates that, save in exceptional circumstances, accused persons shall be kept separately from convicted persons and shall be treated in accordance with the separate regime applicable to detainees. Juveniles shall be kept separately from adults and shall be brought to trial as speedily as possible. Paragraph 3 of this Article stipulates a guiding principle for the treatment of persons deprived of their liberty, according to which the treatment of prisoners in the prison system should be primarily aimed at their rehabilitation and social rehabilitation, not primarily at punishment or torture.
- Right to information and communication with outside parties
The body of principles for the protection of all persons detained or imprisoned in any form of detention or imprisonment shall pay special attention to the protection of the right of persons deprived of their liberty to communicate with the outside world, with their relatives and, in particular, with their lawyers. According to principle 15, a detained or imprisoned person shall not be denied communication with the outside world, in particular with his or her family or his or her lawyers, except in exceptional cases.
1.3.2. Ensuring human rights in arrest, detention and temporary imprisonment according to the Criminal Procedure Law of some countries in the world
The measure of arrest is stipulated in the Criminal Procedure Code of most countries, for example, the Criminal Procedure Code of the People's Republic of China stipulates: "No citizen may be arrested without the decision or approval of the People's Procuratorate, or without the decision of the People's Court; the arrest must be carried out by a public security organ" . This provision ensures that no person may be arrested without a lawful arrest warrant from the People's Procuratorate or the People's Court. However, there is an exception to this principle. In the following cases, the police may arrest a criminal or a suspect without a warrant: If the person is in the process of preparing to commit a crime, is committing a crime, or is discovered immediately after committing a crime; if the person is identified by the victim or witness as having committed a crime; if evidence of a crime is found on the person or at the place of residence of the person; if after committing the crime the person has the intention or intent to escape; if the person is capable of destroying or falsifying evidence or colluding with others to unify statements; if the person's identity is unclear and there is reason to suspect that he or she is moving from one location to another to commit the crime; if the person is "destroying, appropriating" and damaging works or social order.
In addition, in the following cases, any citizen has the right to arrest and escort a criminal to a public security agency, the People's Procuracy or the People's Court: A person who is committing a crime or is discovered immediately after committing a crime; a person who is wanted; a person who escapes from prison; a person who is being chased.
Within 24 hours of the suspect's arrest, the family or the
The person's employer must be informed of the reasons for his or her arrest and the place of detention, unless such notification would impede the investigation, or it is impracticable to do so [59].
The Swedish Criminal Procedure Code stipulates: "For arrested persons, after arrest, interrogation and testimony must be conducted immediately. Within 6 hours for less serious crimes and 12 hours for serious crimes from the time of arrest, a decision must be made to detain or immediately release that person..." [39].
Regarding arrests in emergency cases or in flagrante delicto, according to the provisions of Canadian Criminal Procedure Law, there are two cases: arrests without a warrant by any citizen or property owner to hand over to a security officer; and arrests made by a security officer [58].
In general, arrests are basically divided into two types: arrests with a warrant and arrests without a warrant. However, whether or not they are divided into separate articles, the provisions of the Criminal Procedure Law of those countries also contain cases such as arresting suspects and defendants for temporary detention; arrests in emergency cases, arrests of people caught in the act of committing a crime, or arrests of wanted people.
The Criminal Procedure Code of the Russian Federation stipulates:
After bringing the suspect to the initial investigation agency, the investigator or prosecutor must, within no more than 3 hours, draw up a record of detention..., ... The initial investigation agency, the initial investigator or investigator is obliged to notify the prosecutor of the detention within 12 hours from the time of detention of the suspect [60].
According to the provisions of the French Criminal Procedure Law, temporary detention is carried out in both cases: caught in the act of crime and not caught in the act of crime. But only a judicial police officer has the right to order temporary detention.
In the case of a preliminary investigation, a person can only be detained when there are signs that allow speculation that they have committed or intended to commit a crime.
In the case of a crime caught in the act, there are two subjects that can be detained: the first is those who have been ordered by the judicial police to not leave the place where the crime occurred and the second is those who are able to provide information about the crime. To proceed with detention, it is necessary to base on the signs, if there are no signs of a crime, the investigation agency can only invite them to take statements.
The detention measure is limited in time. In principle, the detention period is 24 hours, which can be extended by another 24 hours if the Chief Prosecutor of the Court of First Instance so permits. The detainee must appear before the Chief Prosecutor of the Court of First Instance. If the extension is absolutely necessary, the appearance is not always mandatory. Therefore, the general legal regime for detention is 24 hours, which can be extended by another 24 hours. However, there are some exceptions: First of all, in the case of drug crimes, the detention period is 24 hours, the first extension is 24 hours, the second extension is 48 hours. The same is true for terrorism. In both cases, the second extension of 48 hours was not ordered by the prosecutor but by a trial judge, who was a completely independent judge and the person was required to appear before him. Thus, in both cases, the first extension of detention was decided by the Chief Prosecutor of the Court of First Instance, while the second extension of detention was not mandatory and was decided by the trial judge.
Judicial police officers must inform detainees of certain rights they are entitled to from the time of detention, such as: the right to be informed
the detention of family members such as spouses, cohabitants, fathers, or employers; the right to have a doctor come to examine their health; and especially, the most important right, the right to meet and talk with a lawyer. Failure to do so will subject the police officer to criminal or civil liability [38].
Regulations on temporary detention in some countries around the world are basically the same. However, due to differences in the judicial system in each country, regulations on temporary detention, including temporary detention, also have distinct features.
The Japanese Criminal Procedure Law stipulates: "Only the prosecutor has the right to request the judge to detain the suspect for investigation... Upon receiving the prosecutor's request, the judge must study the relevant documents, examine the evidence and conduct a private interrogation of the suspect..." . Thus, the Japanese Criminal Procedure Law stipulates that only the judge has the right to order detention. This provision is understood to mean that any judge at any level, at any stage of the criminal procedure, has the right to order detention.
If the judge finds that there are reasonable grounds to believe that the suspect has committed a crime and if the case under consideration falls into one of the following categories, the judge may order the suspect to be detained for a period of 10 days: The suspect has no fixed place of residence; there are reasonable grounds to believe that the suspect may destroy evidence; there are grounds to believe that the suspect may flee.
In all other cases, the judge must reject the prosecutor's request and order the suspect released.
If the judge orders the suspect to be detained, and if the prosecutor is unable to complete the investigation within the initial 10-day period, the prosecutor may request the judge to extend the detention for another 10 days.