Guidance on the Application of the Criminal Procedure Code

According to the provisions of Point c, Article 81 of the Criminal Procedure Code: "The commander of an aircraft or ship that has left the airport or port has the right to issue an arrest warrant in an emergency and has the right to issue a temporary detention decision according to Clause 2, Article 86 of the Criminal Procedure Code" [42]. However, the question is: in the case of an aircraft, it is possible to hand over the detained person to the investigation agency in time, but in some cases of ships, it is difficult to hand over the detained person to the investigation agency in time. So in this case, how will the temporary detention period be calculated? This is not yet regulated by law.

Provisions such as Article 87 of the 2003 Criminal Procedure Code clearly only regulate the detention period of one of the four groups of people with the authority to decide on detention, but do not cover all four groups of people deciding on detention.

According to the provisions of Clause 1, Article 86 of the Criminal Procedure Code, temporary detention can be applied to criminals who confess or turn themselves in. And as we know, criminals who confess or turn themselves in are not arrested, but they voluntarily present themselves and report their crimes. They are not arrested. So, the question here is: from when is the temporary detention period calculated for them? This has not been regulated by law. Therefore, it is necessary to stipulate that the time of temporary detention is calculated from the time the detainee is arrested or surrenders or turns himself in and there is a decision to detain them.

Second , according to the provisions of Clause 1, Article 87 of the 2003 Criminal Procedure Code, the detention period must not exceed three days. So the question is how is the word "day" in the phrase "three days" understood? Does it include both day and night, which is 24 hours, or just 12 hours? This law does not have a clear provision, it needs to be more clearly defined. Currently, in the decision to detain a detainee, the prosecution agency still uses the calculation method that one day is equal to 24 hours and the detention period is also calculated by the hour.

- Regarding the authority to extend temporary detention:

Maybe you are interested!

According to Clause 2, Article 87 of the Criminal Procedure Code, if necessary, the person issuing the detention decision may extend the detention period but not more than 3 days;

In special cases, the person who decides to detain can extend the detention period twice, but each extension cannot exceed 3 days... This provision will help investigators to be more effective. However, these provisions are not specific, making it easy for the subject conducting the proceedings to understand them in many different ways, creating a fairly wide scope for the subject to apply. So, which cases are considered " necessary ", which cases are " special "? This is entirely up to the subject conducting the proceedings to determine and implement. Therefore, to ensure strictness and ensure the principle of legality, the law needs to clearly state: "In which cases is it necessary to issue a decision to detain? To what extent is it specific? Each case must be specifically regulated; sub-law documents should not be used to regulate or guide because it can easily create arbitrariness and inconsistent application in extending detention.

Within 12 hours of the decision to detain, the decision to detain must be sent immediately to the People's Procuracy. The decision to detain can be extended twice, each time for no more than three days; the decision to extend the detention must be sent to the People's Procuracy of the same level for approval. However, there is currently a problem being raised in both theory and practice. That is, does the decision to detain need to be sent to the People's Procuracy for approval? Why does the decision to detain not need approval but the decision to extend the detention need approval? The People's Procuracy does not approve but has the right to cancel the decision to detain of the investigation agency in cases prescribed by law. This is a contradiction of the Criminal Procedure Code from both a theoretical and practical perspective: the original decision (groundedness, necessity) does not need approval; but the decision to extend (only necessity) must be approved by the People's Procuracy of the same level. Therefore, this is also an issue that needs to be studied more carefully to have the most appropriate regulations. In my personal opinion, it is necessary to add the content of transferring "the decision to temporarily detain and the file must be sent to the People's Procuracy of the same level" to Clause 3, Article 86 of the Criminal Procedure Code. From there, it is possible to overcome the situation of having a decision to temporarily detain but the People's Procuracy does not.

It is known that when the decision to temporarily detain is canceled or the file needs to be transferred to approve an emergency arrest warrant or extend the temporary detention, the People's Procuracy will discover that someone is being detained and supervise the detention.

* Temporary detention

- Regarding the subject and basis for applying temporary detention measures:

+ Subjects to which temporary detention measures may be applied: I think that the provisions in Clause 1, Article 88 of the 2003 Criminal Procedure Code should be supplemented with provisions on subjects to whom temporary detention measures may be applied, in addition to suspects and defendants, there should also be "people who have been sentenced to imprisonment by the Court" so that they are consistent with other provisions of law and fully reflect the subjects to whom temporary detention measures may be applied. At the same time, provisions should also be added on the purpose of applying temporary detention measures. Point b, Clause 1, Article 88 of the 2003 Criminal Procedure Code, in addition to the purpose stated in the provision, the application of temporary detention measures also has the purpose of ensuring the execution of judgments, specifically the passage: "... obstructing the investigation, prosecution, trial..." in Point b, Clause 1, Article 88 should be supplemented with "... obstructing the investigation, prosecution, trial and execution of judgments...". In addition, it is necessary to add to Clause 1, Article 88, Point c, which stipulates that "a person who has been sentenced to imprisonment by the Court and is awaiting execution of the sentence or is serving a sentence and has escaped and been arrested under a wanted warrant" is also a subject that can be subject to temporary detention. Clause 2 of this article stipulates that "... the elderly and seriously ill with a clear place of residence shall not be temporarily detained but other preventive measures shall be applied, except in cases prescribed by law", but the law does not provide guidance or explain what age group is considered elderly and what condition is considered serious illness, which agency or level has the right to confirm this condition? Therefore, this progressive and humane provision of the law has been easily denied in practice by the subjective will of those with authority in the prosecution agency. Therefore, I recommend that it is necessary to add provisions or provide specific guidance on this issue to Clause 2, Article 88 of the Criminal Procedure Code.

+ Basis for applying temporary detention: It is necessary to amend Clause 1, Article 88 of the Criminal Procedure Code on the basis for applying temporary detention in the direction that temporary detention can only be applied.

applied to suspects and defendants, if there is specific basis to affirm that they may continue to commit crimes, may abscond or obstruct the investigation, prosecution, trial and execution of judgment or continue to commit crimes. Point a, Clause 1, Article 88 of the Criminal Procedure Code stipulates that suspects and defendants who commit very serious crimes or especially serious crimes can be detained without any other basis, which is unreasonable and inconsistent with the idea of ensuring human rights in criminal proceedings. Because:

Firstly , the accused is not yet guilty and detention is not a punishment. According to the principle of presumption of innocence, a person is only considered guilty when there is a court judgment that has come into legal effect. The accused is only suspected of committing a crime, so criminal liability cannot be applied to them. The coercive measure applied here is only a procedural measure aimed at preventing the accused from continuing to commit crimes, escaping or obstructing the proceedings. It is impossible to mechanically infer that a person who has committed a very serious or particularly serious crime is likely to commit another crime, escape or obstruct the proceedings, and thus be detained.

Second , the provisions on the basis for applying temporary detention measures at Point a, Clause 2, Article 88 of the Criminal Procedure Code do not reflect the purpose or basis for applying preventive measures as prescribed in Article 79 of the Criminal Procedure Code. Article 79 of the Criminal Procedure Code stipulates that the basis for applying general preventive measures is that any preventive measure applied must have one of the following bases: 1- The suspect or defendant may commit another crime (a crime in progress or another crime); 2- The suspect or defendant causes difficulties for the investigation, prosecution, and trial (such as absconding, obstructing the investigation, prosecution, and trial, etc.); or 3- It is necessary to ensure the subsequent execution of the judgment (in case there is a legally effective judgment). The provisions of Point a, Clause 2, Article 88 of the Criminal Procedure Code do not have any of the bases for applying general preventive measures. Article 79 of the Criminal Procedure Code also does not provide an exception that in cases of very serious or especially serious crimes, the above grounds are not required;

Third , the regulation on the basis for applying temporary detention measures at Point a, Clause 2, Article 88 of the Criminal Procedure Code creates the possibility of arbitrariness in applying temporary detention measures, the most severe preventive measure in criminal procedures in our country, seriously affecting the right to personal freedom of suspects and defendants.

In addition, it is also necessary to amend Point b, Clause 1, Article 88 of the Criminal Procedure Code in the direction of a clearer and more transparent basis for applying preventive measures to avoid abuse in practice. According to the above provision, suspects and defendants who commit less serious or serious crimes for which the Criminal Procedure Code prescribes a prison sentence of more than two years and there is reason to believe that they may escape or obstruct the investigation, prosecution, trial or may continue to commit crimes may be detained. There are two issues to note here: 1- There will be a lack of consistency in determining crimes that can be detained; because it is not clear how to understand the penalty prescribed for more than two years. Normally, in the Criminal Procedure Code and the Criminal Code, lawmakers often take the highest level of the prescribed penalty as the basis in other legal regulations. Therefore, is it necessary to stipulate that suspects and defendants who commit less serious or serious crimes for which the Criminal Procedure Code prescribes a prison sentence of more than two years can be subject to detention; 2- It is not advisable to stipulate that there is a basis for assuming that… in a general and completely subjective manner by the person applying it. Because the law stipulates so, in practice, when requesting the Procuracy to approve the decision to detain, the Investigation Agency only issues an official dispatch with a subjective assessment that the defendant may escape, commit another crime or ensure the investigation without any basis for confirmation or specific evidence. Once the defendant has been detained, it is rarely changed or canceled in the following stages of the proceedings and the Court is also very limited in allowing the defendant to receive a suspended sentence or a punishment other than imprisonment; in many cases, the Court only issues a sentence (a prison sentence equal to the period of detention). That greatly affects the rights and legitimate interests of the offender, because the adverse legal consequences for those sentenced to imprisonment, those who receive a suspended sentence and those who are punished by non-imprisonment punishments are very different.

Thus, the Criminal Procedure Code needs to stipulate that the basis for applying temporary detention is that the competent person must have specific grounds to confirm the actual possibility that the suspect or defendant will continue to commit crimes, escape or obstruct the investigation, prosecution, trial or execution of the sentence. Those specific grounds cannot be general judgments, with subjective elements of the competent person applying them, but must be proven by specific evidence, objective assessments based on the crime committed, the objective circumstances of the crime, and the personal factors of the suspect or defendant. With such amendment, the provisions of Article 88 of the Criminal Procedure Code are consistent with Article 79 of the Criminal Procedure Code, avoiding arbitrariness in the application of measures of arrest, temporary detention, and temporary detention, the most severe coercive measures in criminal procedures in our country.

- On the basis for applying temporary detention measures to minors At the same time as perfecting the basis for applying the above mentioned temporary detention measures

above, it is necessary to study and amend Clause 1, Article 303 of the Criminal Procedure Code on the basis of temporary detention for minors from 14 to under 16 years old who commit crimes in the direction of narrowing the scope of application of these strict preventive measures for minors who commit crimes. Studying Article 12 of the Criminal Procedure Code and Article 303 of the Criminal Procedure Code, the basis for applying temporary detention for minors from 14 to under 16 years old who commit crimes is stipulated in Clause 1, Article 303 of the Criminal Procedure Code, which is no different from that for adults. According to Article 12 of the Penal Code, minors from 14 to under 16 years old are only criminally responsible for very serious intentional crimes or especially serious crimes, or in other words, persons from 14 to under 16 years old can only become suspects or defendants when they commit very serious intentional crimes or especially serious crimes. Detaining (as well as any other preventive measures) suspects or defendants from 14 to under 16 years old is redundant and unnecessary. Thus, according to the provisions of the current Criminal Procedure Code, minors from 14 to under 16 years old who have committed crimes can be arrested, detained, or temporarily detained in all cases without any additional grounds. Meanwhile, minors from 16 to under 18 years old

must bear criminal responsibility for all crimes, but according to Clause 2, Article 303 of the Criminal Procedure Code, they can only be arrested, detained, or imprisoned in cases of serious intentional crimes, very serious crimes, or especially serious crimes.

From the above analysis, it is only necessary to stipulate two grounds for detaining minor defendants from 14 years old to under 16 years old in cases where there is a basis to affirm that the accused: 1- may continue to commit crimes; or 2- may escape. As for the basis of the type of crime, it is a matter of course according to the provisions of law; the basis that the accused may cause difficulties for the investigation, prosecution, and trial is not necessary to be set forth for this age group.

Currently, the Vietnamese Criminal Procedure Code does not have any specific provisions on the period of detention for minors, which means that the period of detention for minors (similar to the period of investigation, prosecution, and trial) is the same as the period of detention for adults. This is unreasonable when international conventions on the protection of the rights of minors and judicial procedures for minors all require a shortened, friendly procedure for this group of people who need special attention. Based on the principle: "when using preventive detention measures, juvenile courts and investigative agencies must give the highest priority to resolving these cases as quickly as possible, to ensure that the detention period is at the lowest possible level" [6]. Deprivation of liberty of minors should only be used as a measure of last resort and for the minimum necessary time, and should only be limited to exceptional cases. The duration of this punitive measure should be decided by the judicial authority without excluding the possibility of early release of the minor. This requires the improvement of the provisions of the Criminal Procedure Code as well as other legal documents in the direction of reducing the detention period for minors compared to adults. This contributes to limiting the psychological and spiritual impact on this vulnerable group and helping them to quickly reintegrate into the community.

- On changing and canceling detention measures

+ According to Clause 6, Article 120 of the Criminal Procedure Code, during detention, if deemed unnecessary, the Investigation Agency must promptly request the Procuracy to cancel the detention... The basis for "Considering it unnecessary" to cancel the detention measure is not determined, and is entirely subjective to the person applying it;

+ Add to Clause 2, Article 166, Article 177 of the Criminal Procedure Code the basis for applying, changing, and cancelling preventive measures. These provisions only stipulate the authority of the People's Procuracy and the People's Court in applying, changing, and cancelling preventive measures without stipulating the basis for such application, change, or cancellation. This creates arbitrariness in the practice of investigation, prosecution, and trial. Therefore, it is necessary to amend and supplement the above provisions in the direction that: after receiving the case file, the People's Procuracy and the People's Court have the right to apply preventive measures when there are grounds prescribed in Articles 88, 91, 92, and 93 of the Criminal Procedure Code, and are responsible for changing or cancelling such preventive measures when there are no longer grounds for application.

At the same time, with the above analysis, it is necessary to complete Article 94 of the Criminal Procedure Code in the following direction: 1- When a case is suspended, all applied preventive measures must be canceled; 2- When the time limit for applying a preventive measure has expired, that measure must be canceled; 3- The Investigation Agency, the Procuracy, and the Court must cancel the preventive measure or replace it with another measure when there is no longer a basis for application.

3.2. GUIDANCE ON THE APPLICATION OF THE CRIMINAL PROCEDURE CODE

To ensure the QCN, along with perfecting the Criminal Procedure Code to amend the inadequate regulations, supplementing new regulations to ensure that the litigation activities are accurate, objective and perform the task of protecting the rights and legitimate interests of citizens, it is necessary to strengthen the guidance on the unified application of the provisions of the Criminal Procedure Code by competent authorities. Some specific measures are as follows:

- Guidance on the application of non-custodial preventive measures such as bail, prohibition from leaving the place of residence, deposit of money or valuable assets as security

Comment