IMPROVE THE EFFICIENCY OF APPLYING VIETNAM'S LAWS ON DETENTION ACTIVITIES

ABSTRACT

Law on temporary detention is a part of the legal system of the Vietnamese state. The law on temporary detention regulates and creates favorable conditions for the process of investigation, prosecution, trial, and execution of criminal sentences, while respecting and fully ensuring human rights and civil rights during the process. detention. The article summarizes the legal system on temporary detention, the practice of implementing the law on temporary detention and directions for improvement in the current period.

АННОТАЦИЯ

Закон о временном задержании является частью правовой системы вьетнамского государства. Закон о временном задержании регулирует и создает благоприятные условия для процесса следствия, уголовного преследования, суда и исполнения уголовных наказаний, при этом соблюдаются и полностью обеспечиваются права человека и гражданина в ходе этого процесса задержания. В статье обобщается правовая система о временном задержании, практика реализации закона о временном задержании и направления ее совершенствования в текущем периоде.

Keywords: Vietnam; law; custody; detention; Criminal Procedure.

Ключевые слова: Вьетнам; закон; попечение; задержание; Уголовный процесс.

The work of temporary detention plays an important role in supporting the judicial activities of criminal proceedings agencies. Therefore, ensuring good implementation of this work is of great significance in improving the quality and efficiency of investigation, prosecution, adjudication and execution of criminal judgments, thereby meeting the requirements bridge to build a socialist rule-of-law state in Vietnam. Therefore, temporary detention must comply with the legal system to create favorable conditions for investigation, prosecution, trial, execution of criminal judgments, and ensure human rights and civil rights.

1. Current status of Vietnamese law on temporary detention

The legal system on temporary detention has been relatively fully promulgated by the State of Vietnam, which is the legal basis for organizing and effectively implementing temporary detention, contributing to protecting national security, ensure social order and safety, protect human rights and citizens' rights.

At its 10th session, the XIII National Assembly of Vietnam passed the Law on Enforcement of Temporary Detention No. 94/2015/QH13 dated November 25, 2015 [4]. This is considered a legal document that codifies regulations related to temporary detention enforcement, institutionalizing the provisions of Clause 2, Article 20 of the 2013 Vietnamese Constitution: “... Arrest, detention, and detention" people defined by law”. On June 20, 2017, the National Assembly of Vietnam issued Resolution No. 41/2017/QH14 on the implementation of the Law on Enforcement of Custody and Temporary Detention, effective from January 1, 2018. The provisions of the Law on Temporary Detention and Detention 2015 contribute to ensuring human rights, basic rights and obligations of citizens. To implement the provisions of the law in practice, the Government and the relevant Ministry of Public Security have issued many guiding and enforcement documents, such as: Decision No. 372/QD-TTg on promulgating the Implementation Plan. Declaring the Law on Enforcement of Temporary Detention by the Prime Minister dated March 9, 2016; Decree 120/2017/ND-CP on guiding the Law on Detention Enforcement; Decree 113/2021/ND-CP amending Decree 120/2017/ND-CP guiding the Law on Detention Enforcement...The promulgated provisions of law on enforcement of custody and temporary detention have created an important legal basis for organizing, deploying and effectively implementing the enforcement of custody and temporary detention; ensure synchronization and unity; marks a new step in the process of perfecting the Vietnamese legal system to meet the requirements of fighting crime, effectively serving the requirements of investigation, prosecution, trial and judgment enforcement [4]. Implementing the Law on Enforcement of Custody and Temporary Detention, the organizational system of custody and temporary detention management agencies and custody and temporary detention enforcement agencies has been consolidated from the ministerial, provincial to district levels, increasingly better meet the requirements of custody and temporary detention.

However, besides the results achieved, the process of implementing the law on temporary detention and detention in practice has also arisen a number of inadequacies, difficulties and problems, specifically as follows:

First, there are problems with legal regulations. Although the Law on Enforcement of Custody and Temporary Detention was established along with Decrees and Circulars, there have been instructions and amendments. However, the current process of temporary detention still has some limitations and inadequacies in the provisions of law. As follows:

Firstly, there are problems in notifying the end of the detention period. According to Point h, Clause 1, Article 13 of the Law on Enforcement of Custody and Temporary Detention: Detention houses and detention camps have the following tasks: “Notify in writing the agency handling the case 5 days before the expiration of the time limit  temporary detention, 10 days before the expiration of the temporary detention extension period...”, but in reality, it is difficult for detention facilities to strictly comply with this regulation, because the temporary detention period is short, notification, and monitoring are difficult. Supervise and discuss, mainly by phone with the agency in charge, then make a written notification, leading to violations in practice being relatively common.

Second, there are problems in providing health checks for people detained or detained. Clause 2, Article 16 of the 2015 Law on Enforcement of Temporary Detention stipulates that when receiving detainees and detainees, detention facilities are responsible for: “Making a record of handover and receipt of detainees and detainees temporary detention, accompanying documents and records; Organize health examination...”. This regulation is understood to mean that immediately upon receiving a detainee or temporary detainee, the detention facility must organize a health examination for the detainee or temporary detainee to ensure the legitimate rights of the detainee or detainee, detained and there is a basis for detention classification. But currently, the Detention Center does not have a specialized medical officer, so it is basically a matter of checking external traces, and it is impossible to determine whether the detainee has a dangerous infectious disease, is gay or not transgender to be classified and detained separately.

Third, there are problems in the regulations on making names and copies of temporary detainees and detainees. In Clause 3, Article 16 of the 2015 Law on Enforcement of Custody and Temporary Detention, it is stipulated that when receiving detainees or temporary detainees, detention facilities have the responsibility to: “Take photos, make copies, and print copies of and enter the book to monitor detainees and detainees”. However, the Law does not specifically stipulate the time limit for making records and copies, so there are cases where detainees and detainees have been in detention facilities for a long time but have not yet made their records, only version. This can lead to inconsistent implementation, making it difficult for the prosecution and synthesis of violations to implement the Procuracy's recommendations for remediation. Therefore, central judicial branches need to have clear regulations on the time limit for making records and copies for uniformity in implementation.

Fourth, there are problems in the regulations on building custody and temporary detention records. Article 17 of the Law on Enforcement of Custody and Temporary Detention regulates custody and temporary detention management records and stipulates “Other related documents”, however this is a general provision, leading to inconsistent interpretation, unity among criminal proceedings agencies; Sometimes it causes difficulties in the application process as a basis for requesting implementation by detention facilities.

Fifth, there are problems in the regulations on the extraction and handover of detainees and detainees during the extraction period. Clause 4, Article 20 of the Law on Enforcement of Temporary Detention and Detention indicates: “Detention facilities are responsible for checking and handing over detainees and detainees to the agency and person responsible for escorting them. The agency or person responsible for escorting is responsible for handing over the person being extracted to the person with authority to order the extraction. The delivery must be recorded in writing”. Along with that, Article 8 of Circular 01 dated January 23, 2018 of the Ministry of Public Security, Ministry of National Defense, Supreme People's Procuracy and Supreme People's Court also regulates the extraction of detainees. Outside the detention facility area, the escorting agency must have an escort and management plan; In cases where many people are being extracted, the crime is very serious... the agency and person responsible for escorting must have a plan to ensure absolute safety... Thus, according to the above regulations, the management Ensuring the safety of detainees during the time of removal from the detention facility is carried out and responsible by the escorting force and in fact only that force is capable of managing itand ensure the safety of detainees.

Second, there are problems in implementing and applying the provisions of Vietnam law on enforcement of temporary detention and detention. This is shown in aspects such as: Receiving, classifying, arranging detention, transfer, extraction, transfer, ensuring the implementation of rights and regimes for detainees, detainees, and others. Being detained has many disadvantages; The management of records, forms, and monitoring books on the management and enforcement of custody and detention and the application of information technology in management, exploitation, statistics, and reporting have not yet been considered, mind, full attention; The facilities of detention facilities are not guaranteed and do not really meet the requirements for temporary detention...

The above-mentioned difficulties and problems in the enforcement of detention and temporary detention have significantly affected the effectiveness of this work in recent times.

2. Solutions to improve the effectiveness of detention and temporary detention in Vietnam

To improve the effectiveness of applying the law on enforcement of custody and temporary detention, it is necessary to pay attention to the following issues:

Firstly, improve the law on enforcement of temporary detention and detention through amending and supplementing legal provisions in this field, such as: amending the content on notification of the expiration of the temporary detention period, temporary detention for a longer period so that detention facilities can strictly and legally implement this regulation; Specific and uniform regulations on the time limit for making records and copies for people detained or held in detention facilities; Amending and supplementing specific regulations on documents and materials included in custody and temporary detention management records to achieve consistency among criminal proceedings agencies in building temporary bases, detain, detain…

Second, raise awareness of party committees and heads of police at all levels about the position, role, and importance of detention and detention enforcement activities. Along with that, it is necessary to improve the quality of the staff performing custody and detention work through opening training and professional development classes, propaganda classes, and dissemination of new related legal documentsto this activity. At the same time, continue to promulgate, supplement and complete regulations on regimes and policies for officers who enforce custody and temporary detention.

Third, focus on understanding, analyzing, and evaluating the situation related to detention and temporary detention, and strengthen the review of law enforcement practices in this field. To do a good job of understanding the situation related to detention and temporary detention, it is necessary to carry out information work well, especially synthesizing, reporting, and statistical data to ensure timeliness and accuracy. It is necessary to raise vigilance and fight against peaceful developments and political transformation through sponsorship activities, technical assistance and foreign experts in the development of legal documents related to temporary detention, detention.

Fourth, ensure coordination between ministries and branches in the development, promulgation and enforcement of legal documents on custody and detention enforcement. In order to effectively implement the work of perfecting the law on custody and temporary detention in the coming time, it is necessary to further strengthen coordination with ministries and branches to build and perfect the law on custody and temporary detention to ensure constitutionality, legal in content, complying with authority, form, order and procedures according to the provisions of the Law on Promulgation of Legal Documents 2015 and guiding documents for implementation.

Fifth, strengthen facilities at detention facilities; Strictly implement the equipment, management and use of weapons and support tools. Detention works, auxiliary works, and technical equipment serving the detention management of detainees and detainees need to be invested in, built, and equipped appropriately.

References:

1. Constitution of the Socialist Republic of Vietnam, 2013 //URL: https://en.wikisource.org/wiki/Constitution_of_Vietnam_(2013) (date of application 21.03.2024)
2. Law on Enforcement of Custody and Temporary Detention2015 //URL: https://vietnamlawmagazine.vn/law-on-custody-and-temporary-detention-5888.html (date of application 21.03.2024)
3. Project "Strategy for building and perfecting Vietnam's socialist rule-of-law state by 2030, with a vision to 2045" //URL: https://en.qdnd.vn/politics/news/strategy-on-building-perfecting-rule-of-law-socialist-state-under-discussion-542978 (date of application 21.03.2024)