Prosecution Agencies Need to Implement Well the Legal Provisions on Preventive Measures in Criminal Proceedings

It is nighttime, so it is impossible to meet the requirement that there must be a representative of the local government or a representative of the agency or organization where the arrested person resides or works and a neighbor witnessing it. Thus, this provision is not suitable when applied in practice. If it is fully cited as it is now, it will force the agency applying the preventive measure to violate procedural law.

Clause 4, Article 81 of the Criminal Procedure Code stipulates:

In all cases, the emergency arrest must be immediately reported to the People's Procuracy at the same level in writing, along with documents related to the emergency arrest for approval;

The Procuracy must strictly supervise the grounds for emergency arrest as prescribed in this Article. If the Procuracy does not approve, the arrested person must be immediately released [32, Article 81].

The design of this law is illogical in that: emergency arrest is decided and executed by the Investigation Agency, because "the incident has already happened". The arrest has already been made, whether it is right or wrong, it has already been carried out, so the approval or release is still a matter for deciding whether to apply other preventive measures or release, but has no meaning for the emergency arrest. Therefore, in our opinion, the phrase "further handling" should be attached after the phrase "approval" because here the Procuracy can only agree with the agency that arrested the person for temporary detention, or consider temporary detention or release.

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The Criminal Procedure Code also stipulates points b and c in clause 2 on the authority to apply emergency arrest measures:

b. Commanders of independent military units at regimental level and equivalent; commanders of border posts on islands and borders;

c. The commander of an aircraft or ship, when the aircraft or ship has left the airport or port [32, Article 81].

This provision presents the following issues for clarification:

When is the ship leaving the port calculated from where, or when the ship commander considers it unnecessary to turn the ship back, and after the emergency arrest, they must temporarily detain the arrested person, but is the temporary detention really in compliance with the provisions of the law when they are at sea and do not have enough time to return to the domestic port? The issue of approval can be done in writing as it is currently done by direct delivery? Therefore, the sending of documents must be done according to modern information methods using the Fax system. Another problem is that the above agencies are authorized by law to apply this preventive measure, in terms of organizational structure, they do not belong to any representative agency of the investigation agency, so which level of the People's Procuracy should consider approval? On that basis, it is more reasonable to allow them to report to the nearest People's Procuracy.

* For temporary detention

As we have studied in the theoretical understanding of detention in criminal proceedings, detention is the act of a competent authority depriving a person of his or her freedom, forcing them to be detained for a short period of time, and those detained are those arrested in an emergency or red-handed case where it is deemed necessary to have enough time to verify their identity, background, and related circumstances to determine the nature and level of the crime in order to decide to prosecute them criminally or release them. In this matter, the activities of grassroots units such as the District Police, which have both the functions of the Investigation Agency and the administrative management function, should be the same entity that decides to detain in criminal proceedings, and sometimes decides to detain administratively. This issue is confusing and lacks specific distinctions, leading to overdue detention, or some views on criminalizing civil, administrative, and economic issues, or vice versa. Therefore, there should be specific regulations at these levels with the state.

Separate detention, clearly stating the detention room for administrative violators with the detention house in criminal proceedings.

According to the provisions of the Criminal Procedure Code, the maximum detention period is 9 days, during which the agency issuing the order and requesting the extension must verify and clarify relevant issues to decide on further measures. Compared to this provision, the above period is unreasonable for arresting a person with a warrant and having to detain them. Usually, wanted people often try to escape far from the place where the warrant was issued. Therefore, if another place arrests, it must detain and notify the agency that issued the warrant to receive the arrested person. However, for various reasons, if this agency does not come to receive the person within 9 days, the detention will be considered a violation of the provisions on detention. Therefore, in our opinion, it should be stipulated that the investigation agency where the wanted person is arrested has the right to issue a detention order to wait for the competent agency that issued the warrant to receive the arrested person. This agency is responsible for arranging to immediately receive the arrested person within the shortest period of time.

* For temporary detention regime

Detention is applied to suspects and defendants when there are legal conditions to deprive them of their personal liberty and some other rights, forcing them to be detained for a relatively long period of time. However, detention includes:

- Detention for investigation;

- Detention for prosecution;

- Detention for trial (including detention pending trial preparation and detention during the trial).

With the function of being a trial agency, this regime has been determined according to the 2003 Criminal Procedure Code. According to this provision, the subjects subject to temporary detention will be:

- The accused is a person from 14 years old to under 16 years old who commits an especially serious crime or a very serious crime intentionally.

- The accused is a person from 16 years old to under 18 years old who commits a very serious crime or an especially serious crime.

- The accused is a person from 16 years old to under 18 years old who commits a serious crime intentionally and there is reason to believe that he or she may escape or obstruct the investigation, prosecution, trial or may continue to commit crimes.

- For defendants who are pregnant women or women who are nursing children under 36 months old, elderly people, or people with serious illnesses whose place of residence is clear, they shall not be detained but other preventive measures shall be applied, except in special cases [32, Article 88].

This is one of the appropriate changes, because we have studied the arrest of suspects and defendants for temporary detention and the measure of temporary detention, both of which show the presence of suspects and defendants in detention camps. If the previous regulations were in place, the number of arrested and detained subjects would increase. That is the reason why "the regulation of conditions for applying the measure of arrest for temporary detention and temporary detention is only a regulation without taking into account the outcome of the situation of its application". This is the change that reduces the "input". When the "capacity, place of detention" does not change. However, the above regulations are changed, requiring calculation and consideration of another situation, which is the number of criminals who are not sent to detention camps will increase. This subject in society needs management and supervision measures to prevent them from committing crimes, which is a rather complicated issue. Therefore, applying the measure of prohibiting them from leaving their place of residence, or granting bail is necessary to apply to them to put them under management.

The period of temporary detention for investigation is stipulated in Article 120 of the Criminal Procedure Code. Along with the change in the corresponding investigation period stipulated in Articles 119 and 120 of the Criminal Procedure Code, it is reasonable to adopt this provision which has great significance requiring the Investigation Agency to consider and calculate more fully and urgently in investigation activities as well as consider when applying temporary detention measures.

The period of temporary detention for trial preparation (as prescribed in paragraph 2, Article 177 of the Criminal Procedure Code) must not exceed the period of trial preparation prescribed in Article 176 of the Criminal Procedure Code [32, Article 177]. Resolution No. 04/2004/NQ-HDTP dated November 5, 2004 of the Council of Judges of the Supreme People's Court also provided guidance on this matter, specifically:

After receiving the case file, the Judge assigned to preside over the trial must immediately examine the documents in the case file related to the application or non-application of preventive measures, to decide as follows:

- For a defendant who is being detained and when the detention period is about to expire (the remaining detention period is not more than 5 days) and it is deemed necessary to continue to detain the defendant, the Chief Judge or Deputy Chief Judge of the Court shall request the Chief Judge or Deputy Chief Judge of the Court to issue a detention order. The detention period in this case shall be calculated from the date of receipt of the case file and shall not exceed 45 days for less serious crimes, 02 months for serious crimes, 02 months and 15 days for very serious crimes and 03 months and 15 days for especially serious crimes.

- For defendants who are being detained while the detention period is still remaining, when the detention period is about to expire (the remaining detention period is not more than 5 days), it is necessary to consider whether it is necessary to continue the detention. If it is deemed necessary to continue the detention of the defendant (or the accused, if there has been a decision to bring the case to trial), the Chief Judge or Deputy Chief Judge of the Court shall request the Chief Judge or Deputy Chief Judge of the Court to issue a detention order. The detention period in this case shall be calculated from the day following the last detention date of the previous detention order and shall not exceed the trial preparation period prescribed in Article 176 of the Criminal Procedure Code and guided in Point a, Sub-Section 1.2.1, Section 1, Part I of this Resolution, minus the period of time the defendant (or the accused) is detained, from the date the Court receives the case file.

- For defendants who are on bail, if after receiving the case file or during the period of studying the case file, it is deemed necessary to apply temporary detention measures to them, the Chief Judge or Deputy Chief Judge of the Court shall request the Chief Judge or Deputy Chief Judge of the Court to issue an order for immediate arrest and detention. In this case, the "Arrest and Detention Order" must clearly state: "The period of temporary detention is calculated from the date of arrest for temporary detention until the date... month... year..." (record the date, month, year of the end of the period of preparation for the first instance trial).

- In case the time limit for preparing for trial must be extended, if the detention period is about to expire (no more than 5 days remaining) and it is deemed necessary to continue the detention, the Chief Justice of the Court has the right to order further detention. The detention period in this case shall not exceed the extended time limit for preparing for trial as prescribed in paragraph 2, clause 2, Article 176 of the Criminal Procedure Code.

- In case the Judge assigned to preside over the trial issues a decision to suspend the case according to the provisions of Clause 2, Article 105 and Points 3, 4, 5 and 6, Article 107 of the Criminal Procedure Code or when the Procuracy withdraws the entire decision to prosecute before opening the trial if the defendant is in temporary detention, the Chief Judge or Deputy Chief Judge shall issue a decision to cancel the temporary detention measure and immediately release the defendant, if they are not detained or held for other violations of the law.

- For defendants who are in detention, if the detention period expires on the opening date of the trial or during the trial, then before the detention period is about to expire (no more than 5 days remaining), the Judge assigned to preside over the trial must request the Chief Judge or Deputy Chief Judge to issue a detention order. The detention period is calculated from the day following the last detention date of the previous detention order and until the end of the trial [53].

* For the regime of prohibition of leaving the place of residence.

Clause 1, Article 52 of the Civil Code dated June 14, 2005 stipulates: "The place of residence of an individual is the place where that person usually lives" . Clause 2 stipulates: "In case the place of residence of an individual cannot be determined according to the provisions of Clause 1 of this Article, the place of residence is the place where that person is currently living" [33, Article 52]. Thus, there are still inconsistent opinions on the understanding of a person's place of residence.

- There is an opinion that a person's place of residence is the commune, ward or town where that person resides or registers temporary residence. But the management and registration of household registration books is at the district, county or town level?

- If the understanding of residence according to the level of household registration management is at the district level, then the scope of residence is wide for people subject to the preventive measure of prohibiting them from leaving their place of residence.

From the above issue, based on the specific local situation, the travel of people subject to this preventive measure should be restricted accordingly, such as communes, wards, towns or districts.

In the case of a person subject to this preventive measure, if they want to leave their place of residence, they must obtain permission from the agency that applied the preventive measure and notify the local authorities where they reside for monitoring. This is even more difficult if the person is subject to preventive measures in a district but the Provincial Police Investigation Agency applies this measure. What must they do to get permission to leave their place of residence before asking for permission?

* For the regime of bail and deposit of money or valuable assets as security:

Although it has been regulated more specifically and clearly than before and there are written instructions for implementation, in reality there are still difficulties and problems.

In principle, the principle of operation in criminal proceedings is impartiality, but here the measure of bail allows agencies, organizations or individuals for the benefit of others.

stand up to guarantee for the accused and defendants. The essence of this measure is to create conditions for individuals and social organizations to participate in litigation activities, directly in the reformation and education of those who have committed crimes. Therefore, the standard of a guarantor must be a person with sufficient political qualities and the ability to manage and educate the accused and defendants to be granted bail to avoid violating the committed obligations. The law does not mention their responsibilities when violations occur.

To ensure feasibility and avoid negativity and arbitrariness, in our opinion, the guarantor must be responsible for material compensation for any violation of the committed obligation. Such as having to pay a sum of money for the arrest if the person on bail escapes... Or along with the guarantee of receiving bail, a sum of money must be deposited to ensure their material responsibility, if there is a violation of the committed obligation, that sum of money will be confiscated to the state budget; there must be specific regulations on the types of crimes that are not allowed to deposit money or valuable assets to ensure the presence of the suspect or defendant. For the types of crimes for which the suspect or defendant can deposit money or valuable assets as security, there must be specific regulations on the amount of money for each type or clearly state which competent authority is assigned to guide on the amount of money or assets that must be deposited corresponding to each crime case.

3.2.3. The prosecuting agency must properly implement the provisions of the law on preventive measures in criminal proceedings.

The process of applying preventive measures against criminals is not simply a matter of following the law, but the high effectiveness of applying preventive measures also needs to be implemented according to methods, tactics appropriate to this criminal subject to achieve both legal goals and professional goals. This is one of the contents

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