Inadequacies and Limitations in Ensuring Human Rights in Criminal Proceedings for Detainees and Prisoners in the City

The Party and the State towards criminals and the social situation in general…[55].

2.2.1.2. Reasons for the results achieved

The agencies conducting the proceedings and competent persons in Hanoi have well implemented the provisions of the Law on Criminal Procedure on detainees and temporary detainees, thoroughly grasped and seriously implemented the resolutions on judicial reform, especially Resolution 37 on the prevention and combat of violations of the law on crimes in the work of temporary detention and temporary detention. The role of the Hanoi People's Procuracy at two levels in the work of supervising temporary detention and temporary detention has always been given attention and focus, and the quality of the supervision work has been increasingly improved. The assessment and classification of detainees and temporary detainees in Hanoi has always been given attention and closely supervised, ensuring that the classification of detainees and temporary detainees is accurate, timely and highly effective. The Hanoi People's Procuracy at two levels has regularly coordinated with the Fatherland Front at the same level in carrying out the work of supervising temporary detention houses and temporary detention camps. The facilities of many detention centers and temporary detention camps have been upgraded and newly built, creating favorable conditions for monitoring and ensuring living conditions for detainees and prisoners.

2.2.2. Inadequacies and limitations in ensuring human rights in criminal proceedings for detainees and prisoners in Hanoi and the causes

2.2.2.1 . Shortcomings and limitations in ensuring human rights in criminal proceedings for detainees and prisoners in Hanoi

First , it limits the guarantee of the right not to be arbitrarily detained.

* For detention

According to current law, not all arrests in emergency cases, crimes caught in the act, criminals who confess or surrender, or those arrested under wanted notices are subject to temporary detention. However,

During the proceedings, competent authorities still abuse the detention of people in some cases such as: criminals who commit crimes are arrested urgently or caught red-handed but they show no signs of fleeing, do not obstruct the investigation, have a clear place of residence, the crime is simple, the crime is not serious, and the basis for determining the crime is sufficient. Here is an example:

On October 22, 2013, the Investigation Police Agency - Long Bien District Police transferred the case file to the Long Bien District People's Procuracy to request the first extension of detention for Nguyen Huy Tan - Born in 1991; permanent residence: Bo De Ward, Long Bien District, Hanoi, showing signs of committing the crime of Gambling as prescribed in Clause 1, Article 248 of the Penal Code. Through studying the case file, the Procuracy found that: Nguyen Huy Tan was caught red-handed while participating in gambling for 100,000 VND with 06 other subjects, confiscated at the gambling table 3,600,000 VND. Tan himself has no criminal record, has a clear place of residence, is a first-time offender, and the gambling is not serious, so the Procuracy did not approve the decision to extend the first detention for Nguyen Huy Tan. In this case, the decision to temporarily detain Nguyen Huy Tan by the Investigation Agency - Long Bien District Police was unnecessary, affecting the detainee's human rights [55].

Violations of detention procedures are quite common, especially at the district and county level investigation agencies. According to the provisions of Articles 133 and 134 of the 2003 Criminal Procedure Code, a person who has been legally summoned by the prosecution agency to testify but is absent without a valid reason and their absence hinders the investigation and prosecution may be escorted. When a citizen is summoned to the investigation agency and then detained, the detention is illegal. Because of course in this case, the person being detained is not the person arrested in an emergency or in flagrante delicto, so there is no basis to detain them. Except in the case that the person is caught red-handed committing a crime at the investigation agency headquarters and is arrested, then

For those summoned to the investigation agency to give statements, and then there is sufficient basis to confirm that the person has committed a crime, a decision to detain them cannot be made. It is necessary to issue a decision to prosecute the accused and apply appropriate preventive measures to the nature and behavior of their crime.

In Hanoi, violations of detention time limits have decreased significantly over the past years. However, they still occur in some district-level units.

Table 3.4: Number of overdue detentions from 2010 to 2014

Year

2010	2011	2012	2013	2014
Overdue number of temporary detention	5	0	5	6	0

Maybe you are interested!

Source: Statistics Department - Hanoi City People's Procuracy.

The situation where the competent authority decides to detain a criminal and then has to release the detainee is still quite common. Based on statistics on the situation of detainees who have to be released by the prosecution agencies in Hanoi in the past five years (Table 3.2), it can be seen that:

- The situation of detainees with temporary detention decisions who must be released later: in 2010 there were 106 cases, in 2011 there were 130 cases, in 2012 there were 184 cases, in 2013 there were 264 cases, in 2014 there were 244 cases.

- The situation of detainees being released due to insufficient grounds for criminal prosecution and not being administratively handled: in 2010 there were 11 cases, in 2011 there were 15 cases, in 2012 there were 22 cases, in 2013 there were 26 cases, in 2014 there were 10 cases.

- Status of detainees released and transferred for administrative handling: 23 cases in 2010, 24 cases in 2011, 46 cases in 2012, 66 cases in 2013, 64 cases in 2014.

In addition to cases of release based on legal provisions, the statistical table (Table 3.2) also shows the number of people who were detained after release pending further processing. In practice, in this case of release, there is often no specific legal basis.

However, based on the principles of criminal procedure, the provisions of a humanitarian nature, and especially in each specific case for each detainee, the agency that issued the detention decision has revoked the detention decision, released the detainee without applying any other preventive measures and will wait until conditions permit to handle the case. The detainees in the above cases may be: People arrested in an emergency, caught red-handed, arrested under a wanted decision, or people who surrendered or confessed but have a serious illness, are being treated for an illness, or are pregnant women or women raising children under 36 months old...

Here is the case:

+ The detainee was temporarily detained by the Investigation Agency and not administratively handled: On June 13, 2010, the Investigation Police Agency, Dong Anh District Police caught 08 subjects red-handed, including Nguyen Van Kien (Born in 1977; permanent residence: Tien Village, Duc Tu, Dong Anh, Hanoi) participating in gambling at the house of Nguyen Van Nho - Born in 1979; permanent residence: Tien Village, Duc Tu, Dong Anh, Hanoi. After making a record of the arrest of the offender red-handed, the Investigation Agency, Dong Anh District Police issued a decision to temporarily detain 08 subjects for investigation. During the investigation, Dong Anh District Police determined that Nguyen Van Kien did not directly participate in gambling with the above detained subjects, but at the time the subjects were caught red-handed gambling, Kien only went to Nguyen Van Nho's house to pay off the debt he had previously borrowed from Nho, and was then arrested by the police agency. On June 16, 2010, the Investigation Police Agency, Dong Anh District Police, based on Clause 3, Article 87 of the Criminal Procedure Code, issued a decision to cancel the decision to detain and release Nguyen Van Kien and not to handle the case administratively. In this case, because he did not commit a crime, Nguyen Van Kien was still detained, therefore, according to the provisions of Clause 2, Article 2 of Joint Circular No. 02 dated November 2, 2012 of the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Public Security, the Ministry of Justice, the Ministry of National Defense,

The Department of Finance, the Ministry of Agriculture and Rural Development guide the implementation of the state's compensation responsibility in TTHS activities, Nguyen Van Kien is in the case of being compensated for damages by state agencies.

Through the inspection work, it is shown that many decisions of temporary detention of the investigation agency do not state the reason for temporary detention as prescribed in Clause 3, Article 86 of the Criminal Procedure Code but instead state the crime. Some emergency arrest warrants do not state the arrest according to any point of Clause 1, Article 81 of the Criminal Procedure Code... Typical violations in issuing temporary detention decisions not within the time limit prescribed in Article 87 of the 2003 Criminal Procedure Code include: Tran Manh Cuong's file shows signs of committing the act of property theft as prescribed in Clause 1, Article 138 of the Criminal Procedure Code: Minutes of arrest at 22:10 on May 20, 2013, decision of temporary detention from 01:00 on May 21, 2013 [55]. Violations regarding the time of starting the decision to detain are quite common, the violation time is not large but directly violates specific provisions of the law on criminal procedure for detainees, violates the human rights, and the right not to be arbitrarily detained for detainees and prisoners.

Although the detention period is not long, the detainee is isolated from society for a period of time according to the law, and the basic and essential rights of citizens are restricted. Therefore, all issues such as subjects, grounds, conditions of application, order, procedures, time limits, authority to issue orders, rights and obligations as well as the regime for detainees are regulated quite strictly by the Law on Criminal Procedure. However, in reality, the implementation of legal provisions on detainees still has some limitations, which not only affect the process of resolving criminal cases but also more or less infringe upon and affect the legitimate rights and interests of detainees.

* For detention

Through the practical application of the provisions of the 2003 Criminal Procedure Code, it is shown that there are still many cases where the measure of temporary detention is applied without or without sufficient basis according to the provisions of the 2003 Criminal Procedure Code, infringing upon the rights of the parties.

Citizens' freedom. In the detention orders of the investigation agency, the decision to approve the detention order of the People's Procuracy only generally states that it is based on the criminal act, based on the provisions of the Criminal Procedure Code and that it is deemed necessary to detain temporarily [57].

Overdue detention has not yet been resolved. In cases, the files of suspects and defendants in detention must extend the detention period due to having to seek instructions from the prosecution agencies at all levels. Overdue detention has directly violated the rights and interests of the detainees: In 2010, there were 49 cases; in 2011, there were 84 cases; in 2012, there were 192 cases; in 2013, there were 270 cases and in 2014, there were 613 cases of overdue detention (Table 3.3).

In recent years, the situation of temporary detention equal to or exceeding the prison term imposed by the court has occurred specifically: in 2010 there were 146 cases; in 2011 there were 134 cases; in 2012 there were 187 cases; in 2013 there were 139 cases; in 2014 there were 151 cases (Table 3.3). However, the law has not yet regulated the issue of compensation for detainees in cases of temporary detention exceeding the prison term imposed by the court.

Second , it limits the guarantee of the right to non-discrimination and equal treatment.

The application of regulations on temporary detention and temporary imprisonment for detainees and temporary prisoners is implemented according to the regulations on temporary detention and temporary imprisonment issued together with Decree No. 89/1998/ND-CP dated November 7, 1998 of the Government, Decree No. 98/2002/ND-CP dated November 27, 2002 amending and supplementing a number of articles of Decree No. 89/1998/ND-CP on temporary detention and temporary imprisonment. In reality, there are still many shortcomings. A common problem is that detainees and temporary prisoners have to stay in an area that is too narrow, directly affecting the health of the detainees and temporary prisoners. According to Article

26. According to the regulations on temporary detention and temporary imprisonment, the minimum average detention area for detainees is 2m2 / person. But in most temporary detention centers and temporary detention camps,

In a state of overload, especially during peak periods of crime prevention and suppression, the number of people detained and imprisoned is very large. The problem of detention camp overload makes it impossible to fully ensure the implementation of policies and regimes for people detained and imprisoned according to regulations, reducing the significance of the leniency policy of our Party and State, as well as reducing the effectiveness of educational and reform measures in detention camps.

- Detention centers do not have a loudspeaker system to organize for detainees to listen to some programs of the Voice of Vietnam radio station - according to Article 29 of Decree No. 89/1998/ND-CP dated November 7, 1998 of the Government (Procuracy of Son Tay, Thanh Tri, Dong Anh, Gia Lam, Me Linh towns in 2014). The regime and food standards during holidays and Tet for detainees are not guaranteed. In addition, the regime of visiting, receiving gifts, custody, sending letters, and medical examination and treatment in many districts is still violated [55].

Third, limitations in ensuring the right to defense.

- Limitations in ensuring the right to have someone else defend them: Article 58 of the 2003 Criminal Procedure Code stipulates the rights and obligations of the defense attorney (being present when taking statements, being allowed to question detainees, suspects, and defendants; collecting evidence from detainees, suspects, and defendants; meeting detainees, suspects, and defendants). However, in reality, these provisions are ineffective due to many reasons, including barriers of legal regulations. For example, at Point g, Clause 2, Article 58 of the 2003 Criminal Procedure Code, it is stipulated that one of the rights of the defense attorney is to "read, take notes, and photocopy documents in the case file related to the defense after the investigation is completed in accordance with the provisions of law" [42, Article 58, Clause 2, Point g]. This provision has limited the right to defense - a right recognized by the laws of countries around the world. Therefore, in reality, the right to self-defense or to have someone else defend the detainee is almost never exercised.

During the investigation phase, the defense attorney has access to case file documents.

and meeting detainees and defendants is very difficult. This is entirely a matter of awareness. The participation of lawyers in the investigation phase is still limited, partly because not everyone knows that they have the right to seek a lawyer, and investigators often "forget" to explain, partly because of the requirement of confidentiality and timely investigation activities. All of these violations cannot be blamed on the Investigation Agency or the Investigators, but in many cases, it is due to many lawyers taking advantage of being involved in the case from the beginning to prolong it, spreading bad public opinion, affecting the process of resolving the case. Therefore, for the purpose of quickly resolving the case and due to lack of trust in lawyers, investigators have used every means to make detainees and defendants refuse defense lawyers, or for minors in detention or temporary detention, their guardians have defended them themselves. However, regardless of the purpose, the issue of honesty and respect for the law by the prosecution agencies must be given more attention to ensure that the rights of detainees and prisoners are exercised.

- Limitations in ensuring the right to self-defense:

+ The right to be explained about the rights and obligations of detainees and prisoners has been clearly recorded in the 2003 Criminal Procedure Code. The Code also stipulates that the prosecuting agencies have the obligation to explain to detainees and prisoners their rights and obligations. However, in reality, the prosecuting agencies still violate this right of detainees and prisoners. In many cases, detainees and prisoners do not know that they have the right to self-defense, especially for defendants who have committed particularly serious crimes and are isolated, not allowed to meet relatives, and not allowed to access legal documents, knowing and exercising this right becomes even more difficult.

+ Restricting the right to complain about detention, temporary detention, and procedural decisions of the agency or person with authority to conduct the proceedings of the person being detained or imprisoned. Although the law stipulates very specifically and very loosely the right to complain of the person being detained or imprisoned, they can denounce orally or in writing.

Comment