Every citizen has the right to inviolability of his or her home protected by the Constitution of Vietnam. Thus, not all cases are police allowed to arbitrarily search people's houses.
Article table of contents
According to Vietnam’s current regulations, the search must be carried out according to the following procedures:
1. Search of residence according to criminal procedures
According to Clause 1 Article 192 of the Criminal Procedures Code 2015 of Vietnam, a search of citizen’s residence shall be conducted in the 02 cases:
- 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 in the residence;
- Conducted to seek wanted persons or search and rescue crime victims.
In other cases, every citizen has the right to inviolability of his or her home protected by the Constitution 2013 of Vietnam, specified in Clause 2 Article 22 herein.
In cases where search of people's residence is permissible, competent individuals and organizations must comply with the order and procedures as prescribed by law. Specifically as follows:
Before conducting the search:
- Obtaining the search decision of individuals competent to issue search warrants, including:
+ Heads and vice heads of investigation authorities. In this event, the arrest warrant must be approved by the equivalent Procuracy prior to apprehension;
+ Head and vice heads of a People’s Procuracy, and head and vice heads of a Military procuracy;
+ Court presidents, Vice court presidents of People’s Courts, and Court presidents and Vice court presidents of Courts-martial; trial panel.
Search warrants issued by individuals as defined in Section 2, Article 35 and Point a, Section 1, Article 113 of the Criminal Procedures Code 2015 of Vietnam and heads and vice heads of investigation authorities must be approved by the procuracy prior to the enforcement of such warrants.
- 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.
During the search:
- 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.
Note:
- Search of residence shall not commence at night, except for emergency circumstances that must be specified in writing.
- The persons attending a search of residence shall not be left to the discretion of leaving the place searched, contacting or interacting with each other or other individuals until the completion of the search.
After the search has been completed:
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.
Note: All cases of search shall be executed in writing and entered into case files.
2. Search of residence according to administrative procedures
According to Article 129 of the Law on handling administrative violations 2012 of Vietnam, search of residence according to administrative procedures is conducted as follows:
- The search of places where material evidence and/or means of administrative violations are hidden shall be carried out only when there are grounds to believe that hidden material evidences and/or means of administrative violations.
- The authority to issue search decisions according to administrative procedures shall be considered and decided by the district-level People’s Committee presidents.
- The search of places where material evidences and/or means of administrative violations are hidden must be conducted in the presence of the owners of such places or major members of their families and the witnesses. Where the place owners or major members of their families are absent while the search cannot be postponed, there must be the representative of the local administration and two witnesses.
Note:
- The search of places where material evidence and/or means of administrative violations are hidden must not be conducted at night, except for emergency cases, or the search is being conducted and having not yet finished but the reasons therefor must be clearly stated in the records thereof.
- All cases of search of places where material evidence and/or means of administrative violations are hidden must be affected under written decisions and must be recorded in writing. Such decisions and records on the search of places where material evidences and/or means of administrative violations are hidden must be handed to the place owners, one copy each.
It can be seen that the search of citizens' residences is very limited, especially when the citizens' right to inviolability of his or her home is protected by the Constitution of Vietnam. Only in cases where there are sufficient and relevant grounds as prescribed, will the citizens' residences be searched. In case of being searched, competent persons must also follow the strict order and procedures mentioned above.
Thuy Tram
