How is the detention period calculated if multiple defendants in the same criminal case are prosecuted under different charges?
Who has the authority to issue orders and decisions to detain defendants for temporary custody?
Based on Article 113, Clause 1, Criminal Procedure Code 2015, it is regulated as follows:
Detaining defendants for temporary custody
1. The following persons have the authority to issue orders and decisions to detain defendants for temporary custody:
a) Heads and Deputy Heads of Investigative Agencies at all levels. In this case, the detention order must be approved by the equivalent-level Procuracy before execution;
b) Directors and Deputy Directors of the People's Procuracy and Directors and Deputy Directors of the Military Procuracy at all levels;
c) Chief Justices and Deputy Chief Justices of the People’s Courts and Chief Justices and Deputy Chief Justices of the Military Courts at all levels; Trial Panel.
The persons who have the authority to issue orders and decisions to detain defendants for temporary custody include:
- Heads and Deputy Heads of Investigative Agencies at all levels. In this case, the detention order must be approved by the equivalent-level Procuracy before execution;
- Directors and Deputy Directors of the People's Procuracy and Directors and Deputy Directors of the Military Procuracy at all levels;
- Chief Justices and Deputy Chief Justices of the People’s Courts and Chief Justices and Deputy Chief Justices of the Military Courts at all levels; Trial Panel.
The duration of temporary custody for defendants is regulated as follows. Who has the authority to issue orders and decisions to detain defendants for temporary custody?
What is the duration of temporary custody for defendants?
Based on Article 173, Criminal Procedure Code 2015, it is regulated as follows:
Duration of temporary custody for investigation
1. The duration of temporary custody for investigation purposes shall not exceed 2 months for less serious crimes, not exceed 3 months for serious crimes, not exceed 4 months for very serious crimes and exceptionally serious crimes.
2. In cases where the case has many complex details, it is deemed necessary to extend the duration for investigation and there are no grounds to change or cancel the temporary custody measure, the Investigative Agency must submit a written request for extension to the Procuracy at least 10 days before the temporary custody period expires.
The extension of temporary custody is regulated as follows:
a) For less serious crimes, temporary custody can be extended once for no more than 1 month;
b) For serious crimes, temporary custody can be extended once for no more than 2 months;
c) For very serious crimes, temporary custody can be extended once for no more than 3 months;
d) For exceptionally serious crimes, temporary custody can be extended twice, each time for no more than 4 months.
Accordingly, the duration of temporary custody for defendants for criminal investigation purposes is:
- For less serious crimes, not exceeding 2 months- For serious crimes, not exceeding 3 months- For very serious crimes and exceptionally serious crimes, not exceeding 4 months
In cases where the case has many complex details, the duration for investigation may be extended as necessary.
If multiple defendants in a criminal case are prosecuted for different charges, how is the duration of their temporary custody calculated?
Based on Clause 1.3, Subsection 1, Section I, Resolution 04/2004/NQ-HDTP, it is guided as follows:
Regarding Article 176 of the Criminal Procedure Code
...
1.3. Regarding the extension of the preparation period for trial
When the period stipulated in Clause 2, Article 176 of the Criminal Procedure Code is nearly over (the remaining preparation period for trial does not exceed 5 days) and the assigned judge finds the case complex and has not made any decisions specified in this clause, the judge must immediately report to the Chief Justice of the Court to issue a decision to extend the preparation period for trial. The extension of the preparation period for trial must be carried out according to Clause 2, Article 176 of the Criminal Procedure Code and must not exceed the period guided in Point b, Subsection 1.2.1, Section I, Part I of this Resolution. After the extension period, the assigned judge must make one of the decisions specified in Clause 2, Article 176 of the Criminal Procedure Code. A case is considered complex if it falls into one of the following cases:
a. The case has multiple defendants, involves organized crime, or involves multiple charges;
b. The case involves multiple fields or multiple localities;
c. The case has many documents with conflicting evidence that requires additional time for study, compilation of the documents in the case file, or consultation with specialized agencies.
Based on Subsection 3, Section II, Official Dispatch 206/TANDTC-PC of 2022, it is guided as follows:
3. In the same criminal case, there are multiple defendants, each being prosecuted under different clauses of the same law or prosecuted for different charges. How is the duration of temporary custody calculated?
This issue was previously guided in Resolution No. 04/2004/NQ-HDTP dated November 05, 2004, of the Supreme People's Court guiding the implementation of some provisions in "first instance trial" section of the 2003 Criminal Procedure Code. Upon review, it was found that the guidance in this Resolution is still appropriate with the current Criminal Procedure Code 2015. Therefore, in cases with multiple defendants prosecuted for different charges (less serious crimes, serious crimes, very serious crimes, exceptionally serious crimes), the duration of temporary custody for each defendant must not exceed the preparation period for trial applicable to the most serious charge for which that defendant is prosecuted.
Hence, in cases with multiple defendants prosecuted for different charges (less serious crimes, serious crimes, very serious crimes, exceptionally serious crimes), the duration of temporary custody for each defendant must not exceed the preparation period for trial applicable to the most serious charge for which that defendant is prosecuted.
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