Expanding international cooperation in other fields. In the general trend, international treaties are gradually becoming a part of the legal system of each country. Researching, amending, supplementing, and promulgating new legal documents on the basis of comparison with international standards to harmonize domestic legal regulations with international law, ensuring the implementation of international commitments is extremely important. In response to the requirement of expanding international cooperation, it is required to build and perfect the BPTG regime in the direction of: shortening the time of detention in the stages of the proceedings; determining the position of consular staff - the representative of the accused as a defense attorney so that they can protect citizens with foreign elements who are subject to preventive measures in general and BPTG in particular; temporary detention for extradition is stipulated in the mutual legal assistance agreement and the law needs to be consistent with the BPNC in the Criminal Procedure Code; upgrading facilities, ensuring living conditions for foreigners who commit crimes at the place of detention; Coordinate with international and regional crime prevention forces to quickly obtain information about crimes so that BPNC can be promptly applied...
3.2. Solutions to improve legal regulations on temporary detention
From the analysis in Chapter 1 and Chapter 2 of the thesis, in our opinion, the Criminal Procedure Code needs to be comprehensively improved, including provisions on temporary preventive measures. We have some suggestions as follows.
One of the requirements for building a socialist rule-of-law state is to have a complete, synchronous, and practical legal system. In recent years, our State has made many efforts and achieved great results in promulgating and amending legal documents, including legal documents in the judicial field. However, in general, our country's legal system is still not synchronous, inconsistent, has low feasibility, and is slow to come into practice [8].
From the practice of ADPL on BPTG of the agencies conducting proceedings in Bac Kan province, the author boldly proposes a number of solutions to contribute to perfecting the provisions of the law on BPTG and ADPL on BPTG.
The limitations in legal regulations and the current situation of applying BPTG as above require research and summaries to amend and supplement the provisions of the Criminal Procedure Code on BPTG to further meet the requirements of judicial reform, which is to respect the rule of law, while protecting human rights and civil rights.
Detention is a preventive measure applied to suspects and defendants when there are grounds according to the provisions of the Criminal Procedure Code (CPC). As a preventive measure that restricts personal freedom, the application of this measure must be strictly and specifically regulated in the CPC regarding the grounds, duration of application as well as the authority to decide on application.
3.2.1. Perfecting regulations on grounds for temporary detention
Thoroughly grasping the spirit of the Party's resolutions on judicial reform "Clearly distinguishing administrative management authority from judicial authority and responsibility in judicial proceedings in the direction of increasing the authority and responsibility of Investigators, Prosecutors and Judges so that they can be proactive in performing their duties, enhancing independence and being responsible before the law for their procedural acts and decisions. Clearly defining the basis for temporary detention; limiting the application of temporary detention for certain types of crimes; narrowing the scope of persons with the authority to decide on the application of temporary detention through studying the current status of regulations and practical implementation of the basis for applying temporary detention as well as the shortcomings and difficulties in the past, the author believes that it is necessary to amend and supplement a number of issues on the basis for applying temporary detention in the Criminal Procedure Code in the following spirit:
Firstly , it is necessary to specifically and strictly regulate the basis for applying preventive measures in general and BPTG in particular, clearly distinguishing between purpose and basis.
Apply preventive measures as a basis for applying BPTG. The current Criminal Procedure Code stipulates the basis for applying general preventive measures in Article 79, but the content of the provisions here is not clear about the basis or purpose of applying preventive measures. On the other hand, in the Criminal Procedure Code there are many preventive measures with different levels of severity, so it is impossible to stipulate a common basis for many measures (like the provisions on the basis for deciding on penalties in the Penal Code).
The concept of temporary detention can be included in Clause 1 of the law on temporary detention instead of the provision of Clause 1, Article 88 of the current Criminal Procedure Code as follows:
Article …: Temporary detention
1- . Temporary detention is a preventive measure in criminal proceedings applied by competent persons at the Investigation Agency, the Procuracy, and the Court to suspects and defendants who commit crimes in particularly serious cases, very serious crimes, or suspects and defendants who commit serious crimes; less serious crimes for which the Penal Code prescribes a prison sentence of more than two years and there is reason to believe that the person may escape or obstruct the investigation, prosecution, trial, or may continue to commit crimes.
2- …
Second , do not use the results of crime classification as an independent basis for building the basis for applying BPTG. It is necessary to consider the possibility that the suspect or defendant may obstruct or cause difficulties for the investigation, prosecution, trial and execution of the sentence or may continue to commit crimes as the main basis for considering and deciding on BPTG. If necessary, it is possible to base on the sanctions of criminal law regulations on crimes to apply.
Third , adding one of the grounds for temporary detention is when applying other preventive measures that do not restrict freedom are ineffective, in order to encourage the THTT agencies to apply these measures; temporary detention should be applied as a last resort in the criminal procedure.
Fourth , amend Articles 177, 228, 243, 250, 287 according to the guidance on the basis of applying preventive measures on Article 88 and Article 303 of the current Criminal Procedure Code.
Fifth , it is necessary to study the restriction of temporary detention for certain types of crimes. The practice of applying the temporary detention in our country in recent years shows that, because the current Criminal Procedure Code does not stipulate which types (groups) of crimes can be restricted from temporary detention, the consideration and decision on temporary detention is only based on the provisions of Article 88 of the Criminal Code (and Article 303 if the suspect or defendant is a minor) and not based on the type of crime that the suspect or defendant has committed. In reality, there are cases where the accused or defendant commits crimes related to economic and official crimes, they have a clear place of residence, and have sufficient conditions to be subject to other less severe preventive measures than the BPTG such as: prohibition from leaving the place of residence, bail or depositing money or valuable assets as security, they do not have the ability and actual conditions to be able to escape or obstruct the investigation, prosecution, trial or can continue to commit crimes, but they are still detained for the simple reason of serving the investigation, prosecution, and trial.
It is necessary to affirm that it is necessary to limit detention of suspects and defendants for certain types of crimes. The question is which specific types of crimes should be limited and in which cases. In the current practical conditions in our country, it is possible to study to limit detention of suspects and defendants for the following types of crimes: Group of crimes against economic management order; group of environmental crimes; some crimes belonging to the group of crimes against property (except for the crimes of: Robbery, kidnapping for the purpose of appropriating property, extortion of property, snatching of property...); some crimes belonging to the group of crimes against public safety, public order and administrative management order; some crimes belonging to the group of crimes against positions and the group of crimes against judicial activities.
However, to meet the requirements of fighting and preventing crime, together
With the regulation of temporary detention restrictions for some types of crimes, it is necessary to increase the effectiveness and feasibility of applying other preventive measures. In our opinion, it is necessary to study the combination of bail measures and measures of depositing money or valuable assets as security into a bail measure to replace BPTG. In which, the person subject to BPTG can provide bail for himself by depositing money or valuable assets as security; agencies and organizations can also provide bail for the person subject to BPTG by depositing money or valuable assets as security; it is not allowed to provide bail by credit as at present.
Sixth , there should be clearer regulations on the review of records and documents as evidence proving the basis for applying BPTG.
Seventh, at the same time as perfecting the basis for applying the above mentioned BPTG, it is necessary to study and amend Clause 1, Article 303 of the Criminal Procedure Code on the basis for 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
People aged 16 to under 18 are criminally responsible 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.
3.2.2. About the period of detention
The period of temporary detention (THTG) is also specifically regulated by the Criminal Procedure Code in Article 120 and a number of other relevant provisions depending on each stage of the criminal procedure. Through analysis, we see that THTG for resuming investigation, temporary detention for additional investigation, temporary detention during the prosecution stage, and temporary detention during the trial stage are quite consistent and reasonable. However, the regulations on THTG during the investigation stage and THTG for minors still have some limitations.
According to Article 120 of the Criminal Procedure Code, the period of temporary detention for investigation shall not exceed two months for less serious crimes, not exceed three months for serious crimes, not exceed four months for very serious crimes and especially serious crimes. In cases where the case has many complicated circumstances, it is deemed that a longer period of time is needed for investigation and there is no basis to change or cancel the temporary detention, the temporary detention period may be extended depending on the type of crime the accused is being investigated for. Comparing the maximum temporary detention and the maximum investigation period prescribed in the Criminal Procedure Code, we see the following differences:
TYPE OF TERM
TYPE OF CRIME
INVESTIGATE | DETENTION FOR INVESTIGATION | |
Less serious | 4 months | 3 months |
Serious | 8 months | 6 months |
Very serious | 12 months | 9 months |
Particularly serious | 16 months | 16 months |
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The above table shows that the investigation period and the time limit for investigation are not consistent with each other for less serious, serious and very serious crimes, which is unreasonable. Because the purpose of applying the time limit in this stage is to prevent the accused from committing new crimes, hindering or causing difficulties for the investigation, and when the investigation conclusion cannot be issued but there is still a basis for applying the time limit, the Investigation Agency (IA) cannot cancel or replace the time limit, while not all cases can speed up the investigation progress. Therefore, it is necessary to uniformly regulate these two types of time limits.
In addition, the current Criminal Procedure Code also has certain limitations when it does not stipulate a simplified procedure for minors, including the provisions on the execution of sentences. Article 303 of the Criminal Procedure Code and other provisions of the Criminal Procedure Code do not have any specific provisions on the execution of sentences for minors, which means that the execution of sentences for minors (similar to the time limit for investigation, prosecution, and trial) is the same as the execution of sentences for adults. This is unreasonable when the international conventions on the protection of the rights of minors and judicial procedures for minors of which Vietnam is a member all require a simplified, friendly procedure for this group of people who need special attention. Deprivation of liberty of minors should only be used as a 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 mental impact on this vulnerable group and helping them to quickly reintegrate into the community.
From the above analysis, the author believes that studying and amending the Criminal Procedure Code to ensure consistency and unity between the period of detention for investigation and the investigation period; shortening the period of investigation, prosecution, trial and the period of detention for minors is an urgent requirement today.
3.2.3. On the authority to decide on applying temporary detention measures
According to the provisions of Clause 3, Article 88; Clause 1, Article 80 of the Criminal Procedure Code, there are currently 9 groups of individuals and collectives with the authority to decide on the application of BPTG to suspects and defendants, specifically: Chief Prosecutor, Deputy Chief Prosecutor of the People's Procuracy and Military Procuracy at all levels; Chief Justice, Deputy Chief Justice of the People's Court and Military Court at all levels; Judges holding the position of Chief Justice, Deputy Chief Justice of the Supreme People's Court of Appeal, Trial Council, Chief, Deputy Chief of Investigation Agencies at all levels.
According to the author, it is necessary to study the change of the subjects with the authority to decide on the BPTQ assigned to the person directly handling the case to enhance practicality and responsibility in performing public duties.
Currently, there are many opinions on the authority to decide on the application of BPTG. Some opinions say that it is necessary to narrow down the subjects with the authority to decide on the application of BPTG, and only the Chief Prosecutor of the People's Procuracy at all levels; Chief Justice of the Court at all levels; and the Trial Council have this authority. However, there are also opinions that