Vietnam: 03 coercive measures in criminal procedures

Vietnam: 03 coercive measures in criminal procedures (Source: Internet)

1. When to apply coercive measures in Criminal Procedures

Competent procedural authorities and persons can implement measures of coercive delivery, forced escort, property distrainment or freezing of accounts, in order to maintain intra vires activities of charge filing, investigation, prosecution, adjudication, sentence enforcement.

(Article 126 of Vietnam's Criminal Procedure Code 2015)

2. Coercive measures in criminal procedures

2.1. Coercive delivery and forced escort

- Coercive delivery may apply to persons held in emergency custody or facing charges.

- Forced escort may apply to:

+ Witness testifiers absent despite of subpoenas not due to force majeure or objective obstacle;

+ Crime victims, not due to force majeure or objective obstacles, refusing expert examination postulated by competent procedural authorities;

+ Persons facing denunciation or requisitions for charges and, through sufficient evidences, found involved in criminal acts leading to charges, but resisting subpoena not because of force majeure or objective obstacle.

- Investigators, heads of units assigned to investigate, procurators, Presiding judges, and trial panel are entitled to make decisions on coercive delivery and forced escort.

- A decision on coercive delivery or forced escort must specify full name, date of birth, residential place of the person delivered or escorted by force; time and location for the appearance of such person and other details as stated in Section 2, Article 132 of this Law.

- Enforcers of decisions on coercive delivery or forced escort shall read and explain such decisions and execute written records of coercive delivery or forced escort as per Article 133 of Vietnam's Criminal Procedure Code 2015.

Competent people’s police force and people’s military force shall be responsible for enforcing the decisions on coercive delivery and forced escort.

- The coercive delivery or forced escort of people must not commence at night.

Senile or seriously ill persons with medical facilities’ affirmation shall not be delivered and escorted by force.

(Article 127 of Vietnam's Criminal Procedure Code 2015)

2.2. Distrainment of property

- Distrainment of property only applies to suspects and defendants whose offences are punishable by mulct or confiscation of property as per the Criminal Code, or applies to guarantee compensations over damage.

- Authorized individuals as defined in Section 1, Article 113 of Vietnam's Criminal Procedure Code 2015, and Presiding judges are entitled to make decisions on distrainment of property. Such decisions made by individuals as defined in Point a, Section 1, Article 113 of Vietnam's Criminal Procedure Code 2015 shall be ratified by the equivalent Procuracy prior to the enforcement of decisions.

- Only parts of property proportionate to probable degree of fine, seizure or compensation for damage shall be distrained. The property distrained shall be preserved by owners or their kin or legitimate managers. Persons, if consuming, transferring, swapping, concealing or destroying distrained property assigned to them, shall incur criminal liabilities as per the Criminal Code.

- Distrainment of property must be done in the presence of:

+ Suspects or defendants or their representatives or family members at least 18 years of age;

+ Representatives of local authorities in the commune, ward or town where distrained property are located;

+ Witnesses.

Individuals distraining property shall execute written records, specify names and conditions of each property distrained. Such written records shall be made according to Article 178 of Vietnam's Criminal Procedure Code 2015, read out to those present and bear their signatures. Opinions and complaints by persons stated in Point a of this Section against distrainment shall be entered into written records and undersigned by such persons and individuals distraining property.

A record of distrainment shall be executed in four originals. One is given to persons stated in Point a, Clause 4, Article 128 of Vietnam's Criminal Procedure Code 2015 immediately after distrainment completes. One is given to the local authority at the commune, ward or town where distrained property are located. One is delivered to the equivalent Procuracy. One is stored in the case file

(Article 128 of Vietnam's Criminal Procedure Code 2015)

2.3. Freezing of  accounts

- Account freeze only applies to suspects and defendants whose offences are punishable by mulct or confiscation of property as per the Criminal Code, or applies to guarantee compensations over damage upon the detection of such persons’ accounts in a credit institution or state treasury. Account freeze also applies to other people’s accounts evidently found to hold amounts involved in criminal acts of accused persons.

- Authorized individuals as defined in Section 1, Article 113 of Vietnam's Criminal Procedure Code 2015, and Presiding judges are entitled to make decisions on account freeze. Such decisions made by individuals as defined in Point a, Section 1, Article 113 of Vietnam's Criminal Procedure Code 2015 shall be ratified by the equivalent Procuracy prior to the enforcement of decisions.

- Only amounts proportionate to probable degree of fine, seizure or compensation for damage shall be frozen. Persons assigned to freeze and manage accounts but defreezing such accounts shall incur criminal liabilities as per the Criminal Code.

- Competent presiding authorities, when freezing accounts, must give written decisions on account freeze to the credit institution or state treasury managing the accounts of accused persons or other people’s accounts involved in criminal acts of persons facing charges. The delivery of the account freeze order must be executed in writing according to Article 178 of Vietnam's Criminal Procedure Code 2015.

The credit institution or state treasury managing accounts of arrestees, detainees, suspects, defendants or other people's accounts involved in criminal acts of arrestees, detainees or defendants, upon receiving the order of account freeze, shall immediately freeze such accounts and execute written records.

A written record of account freeze shall be executed in five originals. One is given to the person facing charges. One is given to other people involved in the accused person. One is given the equivalent Procuracy. One is stored in the case file. One is retained by the credit institution or state treasury.

(Article 129 of Vietnam's Criminal Procedure Code 2015)

3. Termination of property distrainment and account freeze

- Property distrainment and account freeze in force must be terminated in one of the following events:

+ Suspension of investigation or lawsuit;

+ Suspension of investigation or lawsuit against suspects;

+ The Court declares defendants not guilty;

+ Suspects are not penalized to incur fine, property distrainment or compensation for damage.

- Investigation authorities, procuracies and Courts terminate property distrainment and account freeze deemed unnecessary.

The procuracy must be informed of the termination or replacement of measures for property distrainment or account freeze during the stage of investigation and prosecution prior to the issuance of decisions.

(Article 130 of Vietnam's Criminal Procedure Code 2015)

Ngoc Nhi

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