Extracting the Detained Suspect or Defendant Serving a Prison Sentence to Serve the Requirements of a Different Case: Is it Necessary to Supplement the Detention Decision?
What is extraction in temporary detention and imprisonment?
Based on Clause 5, Article 3 of the 2015 Law on Temporary Detention and Imprisonment, extraction is stipulated as follows:
Extraction is the act of taking the person in temporary detention or person in temporary imprisonment out of the detention facility for a certain period under orders or decisions of the competent authorities to perform criminal procedural activities, medical examination and treatment, visits, consular contacts, or to exercise other rights and obligations as prescribed by law.
Does extracting the defendant or convict serving a prison sentence to serve another case's trial require an additional detention decision?
In what cases do defendants or convicts serving prison sentences get extracted?
Based on Clause 1, Article 20 of the 2015 Law on Temporary Detention and Imprisonment, it is stipulated as follows:
Extraction of persons in temporary detention or temporary imprisonment
1. Extraction of persons in temporary detention or temporary imprisonment is only carried out under an extraction order from a competent authority as prescribed by the Criminal Procedure Code, the Law on Execution of Criminal Judgments, and this Law in the following cases:
a) To serve investigative, prosecutorial, trial, or judgment enforcement activities;
b) For medical examination, treatment, forensic examination, or psychiatric forensic examination;
c) To meet relatives, defense lawyers, or legal representatives to exercise rights and obligations as prescribed by law;
d) For foreign detainees or prisoners to have consular access or contact humanitarian organizations in accordance with international treaties to which the Socialist Republic of Vietnam is a party or under agreements between the Socialist Republic of Vietnam and the country of which the detainee or prisoner is a national or for specific foreign affairs reasons.
Thus, as stipulated above, the extraction of defendants or convicts upon an extraction order from a competent authority falls under one of the following cases:
- To serve investigative, prosecutorial, trial, or judgment enforcement activities;- For medical examination, treatment, forensic examination, or psychiatric forensic examination;- To meet relatives, defense lawyers, or legal representatives to exercise rights and obligations as prescribed by law;- For foreign detainees or prisoners to have consular access or contact humanitarian organizations in accordance with international treaties to which the Socialist Republic of Vietnam is a party or under agreements between the Socialist Republic of Vietnam and the country of which the detainee or prisoner is a national or for specific foreign affairs reasons.
Does extracting a defendant or convict serving a prison sentence to serve another case's trial require an additional detention decision?
Based on Section 3, Part II of Official Dispatch 89/TANDTC-PC in 2020, it is guided as follows:
3. In a criminal case, where a defendant or convict is serving a prison sentence in a previous case or is subject to a Decision on administrative handling measures to be placed in a compulsory detoxification center, does the Court need to issue a detention decision for the defendant or convict to provide a basis for extraction to the court session? (Joint Circular No. 04/2013/TTLT-BCA-BQP-TANDTC-VKSNDTC dated May 30, 2013, and Joint Circular No. 01/2018/TTLT-BCA-BQP-TANDTC-VKSNDTC dated January 23, 2018, do not specify this case).
- For a defendant or convict serving a prison sentence in a previous case, no detention decision is issued, only an extraction order to serve the trial activities of the case. There is no basis for detention according to Article 119 of the Criminal Procedure Code. Currently, the central inter-agency is drafting a Joint Circular to replace the above-mentioned Joint Circular No. 04, in which this case will be guided that when the convict is extracted to serve investigation, prosecution, and trial activities, the management, detention, diet, and living policies for the convict are implemented under the Law on Temporary Detention and Imprisonment.
- For a defendant or convict subject to a Decision on administrative handling measures to be placed in a compulsory detoxification center, the Court may request the Director of the compulsory detoxification center to issue a decision on temporary suspension of the enforcement of the decision on administrative handling measures to place the person in the compulsory detoxification center according to Article 117 of the Law on Handling Administrative Violations. Afterwards, based on the specific case, the Court shall consider and issue a decision on detention or other preventive measures for that defendant or convict under the Criminal Procedure Code.
For a defendant or convict serving a prison sentence in a previous case, no detention decision is issued, only an extraction order to serve the trial activities of the case.
Simultaneously, based on Subsection 5, Section II of Official Dispatch 206/TANDTC-PC in 2022, it is guided as follows:
5. When the Court requires the extraction of a defendant or convict serving a prison sentence in another case to serve the trial, does the Court, besides the written request for extraction, need to supplement the detention decision for the defendant or convict during the extraction period?
This case has been guided in Section 3, Part II of Official Dispatch No. 89/TANDTC-PC dated June 30, 2020, from the Supreme People's Court regarding the notification of the results of online resolution of some obstacles in the trial: "For a defendant or convict serving a prison sentence in a previous case, no detention decision is issued, only an extraction order to serve the trial activities of the case. There is no basis for detention according to Article 119 of the Criminal Procedure Code". Furthermore, Article 9 of Joint Circular No. 01/2020/TTLT-BCA-BQP-TANDTC-VKSNDTC dated June 17, 2020, of the Ministry of Public Security, Ministry of National Defense, Supreme People's Court, and Supreme People's Procuracy regulates coordination in extracting convicts, students subject to judicial measures of education at reformatory schools to serve investigation, prosecution, and trial activities, stipulating the management and detention policies for this case when extracted under an Extraction Order/Decision without the need for a detention decision.
Thus, according to the above guidance, when the Court requires the extraction of a defendant or convict serving a prison sentence in another case to serve the trial, besides the written request for extraction, this case is under an extraction order/decision, so the Court does not need to supplement the detention decision for the defendant or convict during the extraction period.
LawNet
