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Saturday, January 25, 2020

Improving provisions on temporary detention

Updated: 14:51’ - 30/03/2011

Nguyen Van Lam
Military court, military zone 9

Temporary detention in reality 

Temporary detention of the accused or defendants in the process of investigation, prosecution and trial can bring about many advantages for clarification of their crimes. However, there remain a number of limitations in the application of this measure which badly affect the rights of these persons and public confidence in justice.

This deterrent measure primarily aims to create favorable conditions for procedure-conducting agencies to investigate alleged offenses of the accused and defendants. Since investigation to collect proof of crimes is a complicated and difficult job, temporary detention of the accused and defendants assists the progress of interrogation of these persons and also prevents them from committing other violations.

Some accused and defendants, unless they are detained in custody, would refuse to give testimonies or give untruthful ones. Detention, with all harsh surveillance and education regimes applied in detention camps, is quite necessary and effective to force stiff-necked and tricky persons to show repentance, admit guilty and reveal their accomplices, helping investigative agencies, procuracies and courts clarify criminal cases, arrest criminals and avoid injustice against the innocent.         

For investigation, taking of testimonies of the accused is compulsory and can take place at any time, even at nighttime, when conditions permit. For this reason, temporary detention of the accused is an effective measure to facilitate interrogation and investigation activities. It helps save time for traveling or carrying out procedures for summoning the accused. In reality, accused persons who are out on bail often shirk being summoned by procedure-conducting agencies or giving testimonies in their places of residence by moving to other places, causing difficulties to procedure-conducting agencies.

In the course of investigation, prosecution and trial of a case, the delivery of various papers and decisions (investigation conclusions of investigative agencies, indictments of procuracies, decisions of courts to put cases to trial, etc.) to the accused and defendants must be made frequently and recorded in writing. In case an accused or a defendant is not detained (out on bail), every time a procedural paper or decision needs to be delivered to him/her, he/she must be summoned to the office of a procedure-conducting agency or a procedure-conducting person has to come to his/her residence to deliver if it is impossible to summon him/her (for example, his/her residence is too far from the office). The delivery would take much time and efforts of procedure-conducting persons. Therefore, temporary detention of the accused and defendants would facilitate the delivery and receipt of procedural papers and decisions.

In a trial, the presence of defendants is compulsory, except some cases in which trial may be conducted in the absence of defendants. As a result, when deciding to put a case to trial, a court should issue documents to summon or take the defendant to the hearing session. This job would be convenient if the defendant is kept in temporary detention. The court would only issue an order clearly stating the time and venue of the trial and hand it to a responsible unit for escorting the defendant from the detention camp to the courthouse. For a defendant out on bail, things would be more complicated if he/she could not show up for various reasons (being on a working trip far from home, illness, inability to pay travel fares, etc.) though the summons has been delivered to him/her.

In some other cases, though the trial has been completed or the judgment has become legally effective or the first-instance court has issued a judgment enforcement decision or a decision to enforce the prison penalty and an order of temporary detention of the defendant and all these documents have been duly delivered to the defendant, judgment enforcement might be difficult if the defendant does not show up at the detention camp on the indicated date of execution of the prison penalty and the responsible agency has to use forces to arrest him/her or issue a “wanted” warrant. All these difficulties would not happen if the defendant remains in temporary detention after he/she is sentenced.

The application of the temporary detention measure, therefore, helps avoid postponement of trials or failure to enforce judgments due to the absconding of defendants or convicts.

The above-said advantages of temporary detention testify to the fact that provisions of the criminal procedure law aim to guarantee human rights in legal proceedings. This is because quick investigation and clarification of a criminal case, prevention of the accused’s and defendants’ relapse into violations and assurance of convenient investigation, prosecution and trial help protect the life and health of and justice for all citizens - the guilty must be penalized and the innocent as well as social security, order and safety must be protected by law. In that spirit, the guarantee of human rights in criminal procedures is provided not only to assure the rights of the accused and defendants but also protect all citizens. The strict punishment of offenders aims to protect the victims while the investigation of criminal cases helps guarantee the rights of the accused and defendants and avoid injustice against the innocent.

Limitations in the application of the temporary detention measure

Grounds for the application of this measure are specifically and clearly provided in the criminal procedure law. However, in reality, the determination of these grounds is largely based on the subjective presumption of procedure-conducting agencies, merely for making investigation, prosecution and trial more convenient.

The criminal procedure law provides that this measure should be applied only when there is a ground to believe that an accused or a defendant is going to cause troubles for investigation, prosecution and trial activities or to relapse into crime or when it is necessary to secure the judgment enforcement. The law further stipulates that this measure must only be applied to the accused or defendants charged for exceptionally serious crimes, very serious crimes, serious crimes or less serious crimes subject to imprisonment sentence of two years or more and when there is a ground to believe that such accused or defendant intends to abscond or to obstruct the investigation, prosecution and trial or relapse into crime.  

In not a few cases, an accused or a defendant who is charged for a less serious crime, has a clean background and a clear residence address, shows no sign of relapse into crime or no intention to obstruct the investigation, prosecution or trial, thus satisfying all conditions for staying out on bail, may still be put into temporary detention for the mere reason that temporary detention would facilitate the collection of testimonies and proofs, delivery of procedural documents or transfer to trial, as mentioned above.

Consequently, defendants in these cases, who should have enjoyed a suspended sentence (for their less serious crimes), were actually sentenced to imprisonment of a term equal to their temporary detention period. Though having been immediately released at the end of the trial, these defendants still felt discontented with the judgments, which they found too severe, and they later filed appeals for the case review.        

The criminal procedure law specifies cases in which temporary detention is needed and also the time limit for temporary detention. However, the investigation, prosecution and trial of complicated criminal cases are often prolonged and therefore require multiple prolongation of the detention duration.

Upon the expiration of the prolonged detention duration, procedure-conducting agencies can do nothing but make investigation conclusions and forward case files to procuracies (for investigative agencies) or make indictments to prosecute accused before court (for procuracies) or issue decisions to put cases to trial (for courts) in order to push forward the proceedings. However, when a case file is forwarded to another procedural stage, the temporary detention duration can be renewed correspondingly. In a certain procedural stage, if procedure-conducting agencies are unable to complete their jobs within the temporary detention duration prescribed for such stage, they would either forward case files to other agencies or return them for additional investigation. This might result in a stalemate in the procedural process and prolong the temporary detention for an indefinite time until these agencies can prove crimes of the accused or defendants. It is obvious that the real temporary detention duration depends on the time required for investigation, prosecution and trial and the detainees would be in a very disadvantageous position in case their case files are returned time and again.

The 2003 Criminal Procedure Code stipulates that procuracies and courts can return a case file for additional investigation for no more than twice (Article 121). However, it allows tribunals, when conducting a trial, may return a case file for additional investigation, which requires the prolongation of temporary detention of defendants, for unlimited times (Article 199). Reality shows that procedure-conducting agencies have taken advantage of those provisions to prolong the temporary detention (for up to nine or ten years in some complicated cases) to serve investigation, prosecution and trial activities.

It is difficult for defense counsels to meet the accused or defendants or to witness the taking of testimonies. This problem is common in the process of investigation into criminal cases. It is provided by law that lawyers (defense counsels) have the right to meet the accused and to witness the taking of testimonies of these persons either after legal actions are instituted against them or right after the completion of investigation for crimes infringing upon the national security (Article 58 of the 2003 Criminal Procedure Code). 

In reality, most requests of defense counsels to meet their clients in detention or witness the interrogation of their clients have been challenged by procedure-conducting agencies by making things difficult for them, i.e., scheduling the interrogation at nighttime or when defense counsels are away on working missions. Procedure-conducting agencies usually justify that their acts aim to deter possible hindrances to the proving of crimes of the detainees after they meet defense counsels, who may advise them to give untruthful testimonies or to give no testimonies at all.

These problems have negatively affected the enforcement of the 2003 Criminal Procedure Code’s provisions on application of the temporary detention measure and seriously infringed upon the rights and interests of the accused and defendants protected by the criminal procedure law. On principle, all accused and defendants, before being found guilty, have all their rights and interests (for example, the right to defend themselves or get defended, the right to know how long is the temporary detention duration, the right to be released if found innocent) guaranteed (except some rights restricted or deprived of during the temporary detention) and all activities of procedure-conducting agencies should aim to protect them. Since this principle is to protect human rights of all citizens, any procedure-conducting agency that fails to adhere to it in the course of investigation, prosecution or trial should be regarded as having infringed upon the law-protected rights of the accused and defendants.

Some proposals           

Firstly, we propose annulling provisions on the right of courts to return case files (for unlimited times) for additional investigation in complicated cases to prevent abuse of such right which might result in unreasonable prolongation of the temporary detention of the accused and defendants.

To us, the return of case files for additional investigation upon opening of a trial as well as the right of courts to return case files are irrelevant to the adjudicating function of courts as provided in the 1992 Constitution and the Criminal Procedure Code. In trying a case, a court’s prime task is to judge the validity and legality of proofs invoked by the plaintiff and defendant, playing a neutral role. Having and exercising the right to return case files for additional investigation, courts seem to perform both functions of trying cases and prosecuting defendants.                           

 Without such right, courts can return case files for additional investigation or even abrogate case files for reopening investigation and adjudication only at the request of procuracies. No case files returned for additional investigation will make the handling of cases simpler and the application of the temporary detention measure compliant with provisions on temporary detention time limits in each procedural stage.

Secondly, we propose that because temporary detention is the toughest deterrent measure, procedure-conducting agencies consider the application of this measure more carefully based on sufficient grounds provided by the criminal procedure law.

In reality, some persons, who should have only been banned from traveling out of their places of residence or enjoyed a bail for the purpose of securing convenient investigation, prosecution and trial, were still temporarily detained for various reasons invoked by procedure-conducting agencies. The careless or improper application of this measure has seriously infringed upon the rights and interests of these persons or even resulted in injustice or omission of crimes and would not help raise the effectiveness of investigation, prosecution and trial activities.

To guarantee the rights and interests of the accused and defendants and protect human rights in criminal proceedings, procedure-conducting agencies should carefully consider the application of this measure while performing their jobs in each procedural stage and be fully aware of its negative impacts on the enforcement of law. If it is possible to apply deterrent measures other than this measure to assure effective investigation, prosecution and trial while guaranteeing the interests of litigants, procedure-conducting agencies should do so. They should refrain from applying the measure just for convenience if they don’t want to compensate for damage caused by the improper detention of the accused or defendants who are later found not guilty.-

Note: For specific time limits for investigation and temporary detention, see this Section’s article by Hoang Thi Minh Son in Vietnam Law & Legal Forum issue No. 198 (February 2011)



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