against torture and other cruel, inhuman or degrading treatment or punishment, 1984; set of principles for the protection of all persons under any form of detention or imprisonment, 1988; rules of conduct for law enforcement officials, 1979; basic principles on the independence of the judiciary, 1985... These documents are presented in a rather concise and succinct manner (UDHR has only 30 articles, ICCPR has 53 articles, Beijing Rules have 40 articles...) but have been effectively adjusted in practice.
Currently, Vietnam is a member of a number of international conventions such as: ICCPR (joined in 1982); CRC (joined in 1990); Convention on the Non-Applicability of Statute of Limitations for War Crimes and Crimes against Humanity, 1968 (joined in 1983)...
An important content in international criminal procedural law on ensuring the human rights of detainees and prisoners is expressed in the fact that the law stipulates very fully and specifically their basic procedural rights. These are the following rights:
- The right not to be tortured and the right to humane treatment (Article 5 UDHR; Articles 7, 10 ICCPR; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)
- The right to liberty and security of person or the right not to be subjected to arbitrary arrest or detention (Article 9 UDHR, Article 9 ICCPR)
Maybe you are interested!
-
Inadequacies and Limitations in Ensuring Human Rights in Criminal Proceedings for Detainees and Prisoners in the City -
Ensuring human rights in criminal proceedings for detainees and prisoners - practical research base in Hanoi city - 16 -
Ensuring human rights for people arrested during the investigation phase of criminal cases - 13 -
Ensuring human rights in arrest, detention and temporary detention according to the Vietnamese Criminal Procedure Law based on practical data in Dak Lak province - 9 -
Ensuring Human Rights During the Prosecution and Investigation Stage of Criminal Cases
- The right to non-discrimination, recognition and equality before the law (Articles 1,2,6,7,8 UDHR; Articles 2,3,16,26 ICCPR)
- The right to privacy or the right to life (Article 12 UDHR; Article 17 ICCPR)
- Right to a fair trial (Articles 10, 11 UDHR; Articles 11, 14, 15 ICCPR)
This right was first mentioned in Articles 10 and 11 of the UDHR, then affirmed and specified in Articles 11, 14 and 15 of the ICCPR, in which Article 14 of the ICCPR plays an important role. Article 14 of the ICCPR has specified the
the right to equality before the Court; the right to be presumed innocent; the right to special procedures for minors; the right to appeal; the right to compensation for wrongful convictions…and a series of other minimum procedural guarantees
Article 10 of the Universal Declaration of Human Rights provides that everyone charged with a criminal offence has the right to be brought before an independent and impartial tribunal, and to defend himself against any charge against him. Article 11 of the Declaration provides that anyone charged with a criminal offence shall be presumed innocent until proved guilty in a public trial according to due process of law, at which he has all the guarantees necessary to defend himself. No one shall be held guilty of any criminal offence and be subjected to punishment on account of any conduct which was not considered a criminal offence under national or international criminal law at the time when it was committed [47, p. 103].
1.4. REGULATIONS ON THE ISSUES OF ENSURING HUMAN RIGHTS FOR PERSONS UNDER DETENTION OR TEMPORARY DETENTION IN THE CRIMINAL PROCEDURE LAW OF SOME COUNTRIES
1.4.1. Regulations on the issue of ensuring human rights for people
detention, temporary detention in the criminal procedure law of the Russian Federation
The Criminal Procedure Code of the Russian Federation was adopted by the State Duma on November 22, 2001 (amended several times from 2002 to 2006). The Code consists of 6 parts, 19 chapters, 57 sections. The tasks of the Criminal Procedure Code of the Russian Federation also clearly demonstrate the goal of protecting human interests, protecting the legitimate interests of individuals and organizations that are victims of crime, not restricting personal freedoms without basis and against the law, and at the same time determining the responsibility of the Investigation Agency, the Procuracy, and the Court while conducting proceedings to respect the rights of participants in the proceedings. According to the provisions of Article 6 of the Criminal Procedure Code of the Russian Federation, the Criminal Procedure Code has three main tasks: First , to protect the rights and legitimate interests of individuals and organizations, of those who suffer damage caused by crime; second , to ensure that no one is charged, convicted, or restricted in their activities.
the right to liberty without basis and against the law; thirdly, the prosecution of criminal liability and the fair application of punishment to offenders, while not prosecuting and applying punishment to innocent people, and exonerating anyone who is prosecuted without basis [53, Article 6].
According to the Criminal Procedure Code of the Russian Federation, the subjects participating in the criminal procedure include: the Court, the subjects participating in the proceedings of the prosecution side, the subjects participating in the proceedings of the defense side and other subjects participating in the criminal procedure. In which: the suspect, the accused, the legal representative of the suspect and the accused who is a minor, the defense attorney, the civil defendant... are in the group of subjects participating in the criminal procedure of the defense side. Depending on each subject, there will be different roles in the criminal procedure, and the law of the Russian Federation has specific provisions on their rights and obligations to participate in resolving the case.
The Criminal Procedure Code of the Russian Federation does not have a specific definition and concept as well as the legal status of a person under temporary detention or custody, but only the concept of a suspect. According to the provisions of Clause 1, Article 46 of the Criminal Procedure Code of the Russian Federation: "A suspect is a person: 1) Against whom a criminal case has been initiated on the grounds and in accordance with the procedures prescribed in Section 20 of this Code; 2) Arrested in accordance with the provisions of Articles 91 and 92 of this Code; 3) Subject to preventive measures before the initiation of criminal proceedings as prescribed in Article 100 of this Code" [53, p. 26].
Article 5, Clause 11 of the Criminal Procedure Code of the Russian Federation provides the concept of detention of a suspect: Detention of a suspect is a procedural coercive measure applied by the initial investigation agency, investigator, investigator or prosecutor within a period of no more than 48 hours from the time the suspect is actually detained for committing a crime [53, p. 6]. In addition, Article 5, Clause 15 provides a specific concept of the actual time of detention: It is the time when the suspect is actually deprived of his or her liberty for committing a crime, which is carried out according to the procedures prescribed by the Criminal Procedure Code of the Russian Federation [53, p. 7].
From the above provisions, it can be seen that a person detained in the Criminal Procedure Code of the Russian Federation is a suspect arrested according to the provisions of Articles 91 and 92 of the Criminal Procedure Code of the Russian Federation, detained for no more than 48 hours from the time the suspect actually committed the crime and for whom there must be a decision of the Court.
In Article 5, Clause 42 of the Criminal Procedure Code of the Russian Federation: "Pre-detention is the status of a person arrested on suspicion of having committed a crime or a defendant being subject to preventive measures in the form of temporary detention in an isolation house for investigation or in another place as prescribed by Federal Law" [53, Article 5, Clause 42].
Article 108 of the Criminal Procedure Code of the Russian Federation stipulates that temporary detention is a preventive measure applied by a court decision to a suspect or accused of a crime for which the criminal law provides for a penalty of imprisonment for more than 2 years in cases where it is impossible to apply a less severe preventive measure. In exceptional cases, temporary detention may be applied to a suspect or accused of a crime for which the penalty is imprisonment for up to 2 years, if one of the following circumstances exists: (1) The suspect or accused does not have a permanent place of residence in the territory of the Russian Federation; (2) Their identity cannot be accurately determined; (3) They have violated another preventive measure applied to them before; (4) They have fled from the investigation agency or the court. The application of temporary detention to a suspect or accused who is a minor as a preventive measure may only be applied in cases where they are suspected or prosecuted for committing a very serious crime or an especially serious crime. In special cases, this preventive measure may be applied to a suspect or accused who is a minor who has committed a serious crime [53, Article 108].
The Law on Criminal Procedure of the Russian Federation regulates the guarantee of human rights, including the guarantee of the rights of detainees and prisoners, based on the following basic aspects:
Firstly , the Law on Criminal Procedure of the Russian Federation stipulates the functions, purposes and tasks of the Criminal Procedure as (1) protecting the rights and legitimate interests of individuals and organizations damaged by crimes; Protecting individuals from illegal and groundless accusations, convictions and restrictions on rights and freedoms; (2) Not to prosecute innocent people, exempt them from punishment, and exonerate those who are prosecuted without basis [53, Article 6].
Second , the Law on Criminal Procedure of the Russian Federation stipulates the rights of detainees and prisoners as follows:
The right to respect for the honor and dignity of an individual . Article 9 of the Criminal Procedure Code of the Russian Federation stipulates that during the criminal procedure it is forbidden to perform acts and issue decisions that degrade the honor of the participants in the criminal procedure as well as to behave in a manner that degrades human dignity or endangers human life and health.
The right to inviolability of the person. Article 10 of the Criminal Procedure Code of the Russian Federation stipulates that no one may be arrested on suspicion of committing a crime or detained without the lawful grounds provided for by this Code. Thus, a person may be detained only by a court decision. No one may be detained for more than 48 hours before the court decision. In the case of a person subject to preventive measures in the form of temporary detention, he or she must be detained in conditions where his or her life and health are not threatened. The right to secrecy of correspondence, telephone and conversational communications, postal items,
Article 13 of the Criminal Procedure Code of the Russian Federation stipulates that restrictions on the right of citizens to the secrecy of correspondence, telephone and conversational, postal, telegraphic and other forms of communication may be imposed only on the basis of a court decision .
Right to presumption of innocence. Article 14 of the Criminal Procedure Code of the Russian Federation provides that a person is presumed innocent until his guilt is proven.
in accordance with the prescribed procedures and has not been sentenced by the Court by a legally effective judgment. The suspect or accused has no obligation to prove his innocence. The problem of proving the crime and refuting the evidence to protect the suspect or accused is the responsibility of the prosecution. Any suspicion of the accused's crime, if not eliminated according to the procedures and procedures prescribed by this Code, must be interpreted in favor of the accused.
Right to defense. Article 16 of the Criminal Procedure Code of the Russian Federation provides that suspects and accused persons are guaranteed the right to defense. They may defend themselves or seek the assistance of a defense counsel or a legal representative. They are guaranteed to defend themselves using all methods and measures not prohibited by this Code. The participation of a defense counsel in criminal proceedings is mandatory if the suspect or accused person does not refuse the participation of a defense counsel; the suspect or accused person is a minor; the suspect or accused person has physical or mental disabilities.
Third , the Criminal Procedure Code of the Russian Federation stipulates the grounds for not initiating a criminal case, suspending a criminal case and criminal prosecution in the cases from Article 24 to Article 28 of the Criminal Procedure Code of the Russian Federation. In particular, a case shall not be initiated if there is no criminal event, the statute of limitations for prosecution has expired, there is no request from the victim if the case is initiated only by the victim; suspension of a criminal case due to the parties' reconciliation; suspension of a case due to a change in the situation; suspension of criminal prosecution due to repentance.
Fourth , the Law on Criminal Procedure of the Russian Federation regulates the exoneration in criminal proceedings (Articles 133 - 139 of the Criminal Procedure Code), which stipulates that the right to exoneration includes three rights: compensation for material and moral damages and restoration of rights. The agency or person conducting the proceedings must issue a decision to recognize the exonerated person and send them a notice with an explanation of the procedure for compensation for damages [6, p. 21].
1.4.2. Regulations on the issue of ensuring human rights for detainees and prisoners in Chinese criminal procedure law
In the criminal procedure of the People's Republic of China (China), the subjects participating in the criminal procedure relationship are all subjects participating in the proceedings. Clause 2, Article 82 of the Chinese Criminal Procedure Law stipulates that "Participants in the proceedings are the parties including: victims, private prosecutors, suspects, defendants, civil plaintiffs, civil defendants..." [54, Article 82, Clause 2]. Although the law does not stipulate the concept of a person under temporary detention or custody or specify that a person under temporary detention or custody is a subject participating in the proceedings as in the Vietnamese Criminal Procedure Code, on the basis of the provisions of the Chinese Criminal Procedure Law, in Chapter 4 on preventive measures, it can be affirmed that a person under temporary detention or custody is also a subject participating in the Chinese criminal procedure. Articles 64, 65, 69 of the Chinese Criminal Procedure Law stipulate:
Article 64 : When detaining a person, the police agency must have a detention order. Within 24 hours of detaining a person, the family or workplace of the detainee must be notified of the reason for the detention and the place of detention, except in cases where the notification would hinder the investigation or there is no way to notify these people.
Article 65 : The police agency must interrogate the detainee within 24 hours of detention. If it deems it unnecessary to detain, it must immediately release the detainee and issue a release order. If the police agency finds it necessary to arrest the detainee without sufficient evidence, it may allow the detainee to have a guarantor while awaiting trial or place the detainee's place of residence under surveillance.
Article 69 : If it is deemed necessary to detain a detainee, within 3 days after the detention, the police agency must request the People's Procuracy to review and approve.
Within 7 days after receiving the request for approval of detention from the police agency, the People's Procuracy must issue a decision to approve or not.
If the People's Procuracy does not approve the arrest, the police agency must immediately release the arrested person and notify the People's Procuracy of the result without delay [54, Article 9].
Thus, a person detained in a Chinese criminal case must have a decision of approval from the People's Procuracy. In case the People's Procuracy does not approve the detention, the public security agency must immediately release the person detained. Even if the decision of the People's Procuracy not to approve the detention is found to be incorrect, the public security agency may request a review but must still immediately release the person detained. Article 70 of the Chinese Criminal Procedure Law stipulates:
If the People's Procuracy's decision not to approve the arrest is found to be incorrect, the police agency may request a review, but must immediately release the detainee. If the request is not accepted, it may request the immediate superior People's Procuracy to review the case. The superior People's Procuracy must immediately examine the case and decide whether or not to make changes, and notify the lower People's Procuracy and the police agency to execute its decision [54, Article 70].
At the same time, the Chinese Criminal Procedure Law also stipulates the guarantee of a number of human rights, including the rights of detainees and prisoners, as follows:
Guarantee the right not to be considered guilty without a valid court judgment . Article 12 of the Chinese Criminal Procedure Law stipulates that "No one shall be considered guilty unless tried and convicted by a People's Court in accordance with the law" [54, Article 12]. This is also a similarity between Chinese law and Vietnamese law.
Guarantee of the right to defence . A criminal suspect has the right to appoint a defence counsel such as a defence lawyer at any time from the time of first interrogation by the investigating agency or the time of being subjected to compulsory measures. In cases where the criminal suspect is in custody, a defence lawyer may be appointed by the guardian or relative.