When shall a search of residence in Vietnam be allowed? Is it mandatory for the suspect to be present during a search of residence in Vietnam?

When shall a search of residence in Vietnam be allowed?

Pursuant to Article 192 of the Criminal Procedure Code in 2015 stipulating justifications for search of body, residence, workplace, area, vehicle, document, item, mail, telegraphy, postal package and electronic data:

Justifications for search of body, residence, workplace, area, vehicle, document, item, mail, telegraphy, postal package and electronic data

1. Search of body, residence, workplace, area, vehicle shall only be permissible in the presence of justifications showing the existence of criminal instruments, documents, items, property obtained by crime or other objects, electronic data, documents related to the case on the body or in the residence, workplace, site and vehicle.

Search of residence, workplace, area and vehicle shall be conducted to seek wanted persons or search and rescue crime victims.

2. If there are justifications showing the existence of criminal instruments, documents, items and property related to the case in mails, telegraphs, postal packages and electronic data, such items and data shall be searched.

As regulated above, search of residence in Vietnam shall only be permissible in the presence of justifications showing the existence of criminal instruments, objects, electronic data, documents related to the case on the body.

Search of residence shall be conducted to seek wanted persons or search and rescue crime victims.

When shall a search of residence in Vietnam be allowed? Is it mandatory for the suspect to be present during a search of residence in Vietnam? - image from internet

Who have the authority to issue search warrants in Vietnam?

Pursuant to Article 193 of the Criminal Procedure Code in 2015 stipulating the authority to issue search warrants:

The authority to issue search warrants

1. Competent individuals as defined in Section 1, Article 113 of this Law are entitled to issue search warrants. Search warrants issued by individuals as defined in Section 2, Article 35 and Point a, Section 1, Article 113 of this Law must be approved by The procuracy prior to the enforcement of such warrants.

2. In emergency events, competent individuals as defined in Section 2, Article 110 of this Law shall be entitled to issue search warrants. Individuals issuing search warrants, in 24 hours upon the completion of the search, must send written notices to the equivalent Procuracy or The procuracy empowered to exercise prosecutors; rights and administer cases and lawsuits.

3. Investigators, before conducting the search, must inform the equivalent Procuracy of the time and location of the search to have procurators assigned to administer the search, except for emergency circumstances. Procurators must be present to administer the search. The procurators' absence shall be clearly described in the written record of the search.

4. All cases of search shall be executed in writing according to Article 178 of this Law and entered into case files.

As regulated above, following entities have the authority to issue search warrants in Vietnam:

- Head and vice heads of investigation authorities;

- Heads of independent units at regiment level and equivalent ones, commanding officers of border protection posts; commanders of border protection units at border gates, captains of border protection units in provinces and centrally-affiliated cities, heads of border reconnaissance departments and drug and crime departments of the border protection force, heads of special services against drug and crime of the border protection force; zone commanders of maritime police force, heads of specialized and legal departments of the maritime police force, heads of special service of drug enforcement of the maritime police force;

- Heads of zonal bureaus of fisheries resources surveillances;

- Commanding pilots and captains of aircrafts and ships leaving airports or sea ports.

Individuals issuing search warrants, in 24 hours upon the completion of the search, must send written notices to the equivalent Procuracy or The procuracy empowered to exercise prosecutors; rights and administer cases and lawsuits.

Is it mandatory for the suspect to be present during a search of residence in Vietnam?

Pursuant to Article 195 of the Criminal Procedure Code in 2015 stipulating search of residence, workplace, area and vehicle:

Search of residence, workplace, area and vehicle

1. Search of residence requires the presence of the suspect or a co-resident person from 18 years of age, representatives of local authorities at communal of the commune, ward or town (at communal or lower level). If the suspect or the co-resident person is intentionally absent, absconds or fails to appear for any reasons, the search of residence, if not deferrable, shall be conducted in the presence of the representatives of local authorities at communal or lower level and two witnesses.

Search of residence shall not commence at night, except for emergency circumstances that must be specified in writing.

2. The person, when his residence is searched, must be present. Despite the absence of such person, the search of residence, if not deferrable, shall occur and be reduced to writing.

Search of workplace requires the presence of the representative of the organization employing the suspect. If the said representative of the employer is absent, the search shall occur in the presence of the representatives of local authorities at communal or lower level and 02 witnesses.

3. Search of an area requires the presence of the representatives of local authorities and witnesses.

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As regulated above, search of residence of a suspect requires the presence of the suspect or a co-resident person from 18 years of age. If the suspect or the co-resident person is absent, the search of residence if not deferrable, shall be conducted in the presence of the representatives of local authorities at communal or lower level and two witnesses.

Note: The above regulations apply in criminal procedure.