PROVISIONS ON PREVENTIVE AND COERCIVE MEASURES IN THE 2015 VIETNAMESE CRIMINAL PROCEDURE CODE

ABSTRACT

The provisions on preventive measures and coercive measures in criminal proceedings are stipulated in Chapter VII of the 2015 Vietnamese Criminal Procedure Code. Accordingly, specific provisions on each preventive and coercive measure have been made to contribute to the quick and effective investigation of criminal cases. In the provisions of the criminal procedure law on preventive measures and coercive measures, there are still some limitations. Therefore, in this article, the author has made a number of recommendations and proposals to improve this provision.

АННОТАЦИЯ

Положения о мерах предупреждения и мерах принуждения в уголовном судопроизводстве изложены в Главе VII Уголовно-процессуального кодекса Вьетнама 2015 года. Соответственно, были приняты конкретные положения по каждой мере предупреждения и принуждения, чтобы способствовать быстрому и эффективному расследованию уголовных дел. В положениях уголовно-процессуального закона о мерах предупреждения и мерах принуждения все еще существуют некоторые ограничения. Поэтому в данной статье автор сделал ряд рекомендаций и предложений по улучшению этого положения.

Keywords: Criminal Procedure Code, preventive measures, coercive measures, criminal proceeding, Vietnam.

Ключевые слова: Уголовно-процессуальный кодекс, меры предупреждения, меры принуждения, уголовное судопроизводство, Вьетнам.

Preventive measures in criminal proceedings are stipulated in Section 1, Chapter VII of the 2015 Criminal Procedure Code, including 17 articles (from Article 109 to Article 125). Of which, there are 10 preventive measures, including: Detention in emergency cases; Arrest of a person caught red-handed; Arrest of a wanted person; Arrest of a suspect or defendant for temporary detention; Temporary detention; Temporary detention; Bail; Deposit of money as security; Prohibition from leaving the place of residence; Temporary suspension of exit.

Coercive measures are important measures to ensure security and order, prevent and combat crimes, ensure the work of solving cases and enforcing sentences, accordingly, preventive measures and compulsory measures in criminal proceedings have been regulated more strictly and there are also regulations that need to be amended and supplemented to suit the actual situation. To ensure that the execution of judgments takes place in accordance with the law within its jurisdiction, competent authorities have applied coercive measures against acts of delay or evasion of judgment execution.

However, in the provisions of the criminal procedure law on preventive measures and coercive measures, there are still some limitations, specifically as follows:

First, preventive measures

- According to Article 112 of the 2015 Criminal Procedure Code, amended and supplemented in 2021 on arresting wanted persons, anyone has the right to arrest wanted persons and hand them over to competent authorities for handling according to the law. However, in reality, the following cases arise: the defendant is wanted, then the Court conducts a trial in absentia and sentences the defendant to imprisonment; during the time the judgment has not yet taken legal effect, the Investigation Agency arrests this person. Joint Circular No. 13/2012/TTLT-BCA-BTP-VKSNDTC-TANDTC dated October 9, 2012 of the central inter-sectoral agencies guiding the implementation of a number of provisions of the Criminal Procedure Code and the Law on Enforcement of Criminal Judgments on wanted persons only guides wanted cases during the investigation, prosecution, trial and execution stages. In case the defendant is arrested during the wanted period mentioned above, which is not in the trial or execution stage (because the judgment has not yet come into effect), how should it be handled? Which agency has the authority to issue a temporary detention order?

- Regarding the competent authority, procedures and order for handling the order to prohibit leaving the place of residence during the time of trial preparation and after sentencing. According to Clause 4, Article 123 of the 2015 Criminal Procedure Code: “The period of prohibition from leaving the place of residence shall not exceed the period of investigation, prosecution or trial...”; according to Clause 2, Article 240 of the 2015 Criminal Procedure Code: “In complicated cases, the period of delivery of the indictment... to the accused or the accused's representative may be extended but shall not exceed 10 days”. Thus, within the period of delivery of the indictment, which authority has the authority to issue an order/decide to apply the measure of prohibiting leaving the place of residence? In addition, for defendants sentenced to imprisonment, the time for determining that the defendant will serve the prison sentence is from the date the defendant is taken to serve the sentence, but in reality there are cases: After the end of the trial, the Court issues an order prohibiting the defendant from leaving the place of residence for 45 days to ensure execution of the sentence; After the judgment comes into legal effect, the Court issues a decision to execute the judgment, the defendant immediately goes to serve the sentence, while the order prohibiting the defendant from leaving his place of residence is still in effect and has not been canceled, how should this be handled?

- Regarding the extension of temporary detention of the defendant in case of prolonging the time for opening the trial. Article 278 of the 2015 Criminal Procedure Code stipulates: “The period of temporary detention to prepare for trial must not exceed the time for preparing for trial prescribed in Clause 1, Article 277 of this Code”. Clause 3, Article 277 of the 2015 Criminal Procedure Code indicates : “Within 15 days from the date of the decision to bring the case to trial, the Court must open the trial; in case of force majeure or objective obstacles, the Court may open the trial within 30 days”. However, the 2015 Criminal Procedure Code does not yet provide for the extension of detention in cases where the Court extends the time for opening a trial according to Clause 3, Article 277.

- on the application of measures to detain people in emergency cases; arrest, temporary detention, and temporary detention of people from 16 to under 18 years old. Currently, the crime situation committed by people under 18 years old tends to increase with more complex and serious nature and level, many cases have gang and hooligan elements. Many people from 16 to under 18 years old are prosecuted for very serious and especially serious crimes and are subject to preventive measures such as prohibiting them from leaving their place of residence, but these people continue to commit crimes. The family circumstances of these people often include parents with criminal records, divorce, violence, social evils, and lack of care, management, and education for their children, so the application of preventive measures such as prohibiting them from leaving their place of residence is ineffective. Although the current regulations demonstrate humanity and a special lenient policy towards people under 18 who commit crimes, they are not drastic enough to prevent people under 18 from continuing to commit new crimes, leading to difficulties in the fight against crime and maintaining security and order.

Second, coercive measures

- regarding the measure of property seizure. Article 128 of the 2015 Criminal Procedure Code stipulates that the measure of compulsory property seizure “is only applicable to suspects and defendants for crimes for which the Penal Code prescribes a fine or may have their property confiscated or to ensure compensation for damages...”. Accordingly, it is not possible to carry out property seizure against people other than suspects and defendants. However, in reality, there are many cases where criminals, especially those who commit crimes of fraud and appropriation of property using high technology, corruption, economics, and positions, use accounts in the names of others to transfer, receive criminal proceeds or disperse assets. The inability to seize assets of people who are not suspects or defendants leads to difficulties in recovering assets, creating loopholes for criminals to disperse and consume assets. In addition, with the development of the stock market, some criminals have used criminal proceeds to buy stocks to disperse assets or launder money. However, the law does not have specific instructions on the order and procedures for carrying out the seizure and handling of stocks on the stock market, leading to difficulties in the process of recovering assets.

- Regarding the measure of freezing accounts. Clause 3, Article 129 of the 2015 Criminal Procedure Code indicates: “Only freeze the amount of money in the account corresponding to the level that can be fined, confiscated property or compensated for damages”. In fact, in some cases, the Investigation Agency discovered that the balance in the account of the accused or other related person was not enough for the amount that the accused had appropriated from the victim, so it ordered the freezing of the account but did not specify the amount. Can the bank understand the freezing order of the Investigation Agency as freezing the entire amount of money in the account of the accused or other related person? There was a case where the Investigation Agency issued 02 orders to freeze bank accounts, in which the order stating the specific amount was sent after the order not stating the amount. At the execution stage, the bank responded that the bank would only execute the order stating the specific amount. This leads to a delay in freezing the accounts of the accused or other related persons, creating time for these persons to disperse assets, affecting the rights of those whose assets have been appropriated. - Regarding measures to seize letters, telegrams, parcels, and postal items at postal and telecommunications agencies and organizations. The 2015 Criminal Procedure Code has not clearly stipulated the time limit and responsibility of telecommunications organizations in responding, providing information, and sanctions applied when telecommunications organizations are slow to provide or do not provide information according to the order to seize letters and telegrams of the Investigation Agency and the approval decision of the Procuracy.

Recommendations for improving Vietnam's criminal procedural law on preventive and coercive measures

First, it is necessary to amend and supplement the provisions of the 2015 Criminal Procedure Code in the direction of:

- Recording the cancellation of the order prohibiting leaving the place of residence applied before the trial time in the judgment; stipulating that the competent Procuracy has the authority to issue a decision to extend the application of the measure prohibiting leaving the place of residence during the time limit for delivering the indictment (trial preparation stage);

- Stipulating that temporary detention can only be extended to prepare for trial when there is a decision to extend the trial preparation period to ensure the spirit of Article 278 of the 2015 Criminal Procedure Code; supplementing the provisions on the period of temporary detention for the defendant after the trial; stipulating the continued application of the old temporary detention order that is still in effect (no need to issue a new one) in cases where the Court returns the file for further investigation but the temporary detention order for the defendant is still in effect;

- Add to Article 128, Article 129 of the 2015 Criminal Procedure Code the following content: Allowing the application of property seizure measures against persons other than the accused, if there is a basis to determine that the criminal property has been transferred to their accounts and assets; clearly stipulate the order to freeze all accounts and the order and procedures for stock seizure..., to avoid loss, effectively combat crimes of property appropriation, economic crimes, corruption, and positions;

- Amend Article 419 of the 2015 Criminal Procedure Code in the direction of: Allowing the application of measures to detain people in emergency cases, arrest, temporary detention, and temporary detention for people from 16 years old to under 18 years old who commit very serious and especially serious crimes of a hooligan or gang nature without having to meet the conditions specified in points a, b, c, d and dd, Clause 2, Article 119 of the 2015 Criminal Procedure Code.

Second, it is necessary to develop a Joint Circular guiding the contents: Regulations of the 2015 Criminal Procedure Code and the 2019 Law on Criminal Judgment Enforcement on wanted persons; guidance on account freezing in criminal proceedings, linking the implementation of account freezing at the local level to facilitate investigation, prosecution, trial and execution of judgments; Coordination work on information provision, responsibility of telecommunications organizations in responding and providing information upon receiving orders to seize letters and telegrams from the Investigation Agency and approval decisions from the Procuracy; explain and provide specific guidance on the concepts of letters and telegrams so that the seizure and inspection are in accordance with legal regulations, avoiding cases of infringement on citizens' privacy.

References:

1. Constitution of the Socialist Republic of Vietnam 2013// URL: https://worldconstitutions.ru/?p=26 (date of application 21.06.2024)
2. Criminal Procedure Code of the Socialist Republic of Vietnam 2015// URL:  https://www.policinglaw.info/assets/downloads/2015_Criminal_Code_of_Vietnam_(English_translation).pdf   (date of application 21.06.2024) 
3. Criminal Procedure Code of the Socialist Republic of Vietnam 2015, amendments and additions in 2021// URL: https://www.wipo.int/wipolex/ru/legislation/details/21477 (date of application 21.06.2024)