Guidelines on applying the emergency custody orders, arresting the temporary detainee in urgent cases in Vietnam

Guidelines on applying the emergency custody orders, arresting the temporary detainee in urgent cases in Vietnam (Image from the Internet)

1. Guidance on applying the emergency custody, emergency arrest orders in Vietnam

According to Article 15 of Joint Circular 04/2018/TTLT-VKSNDTC-BCA-BQP, the application of the emergency custody, emergency arrest orders in Vietnam is as follows:

- When requesting the Procuracy to approve the arrest warrant for the temporary detainee in urgent cases, the Investigation Agency must provide a written explanation detailing the reasons, along with evidence and documents proving the grounds for detaining the person in urgent cases, specifically:

+ If detaining a person in urgent cases as prescribed at point a, clause 1, Article 110 of the Criminal Procedure Code 2015, the dossier must contain evidence and documents clearly proving the grounds to determine that the person is preparing to commit a very serious crime or a particularly serious crime;

+ If detaining a person in urgent cases as prescribed at point b, clause 1, Article 110 of the Criminal Procedure Code 2015, the dossier must include a recorded statement from a co-offender or victim or someone present at the crime scene who directly saw and confirmed the person as the perpetrator, and documents or grounds determining that the person would escape if not detained;

+ If detaining a person in urgent cases as prescribed at point c, clause 1, Article 110 of the Criminal Procedure Code 2015, the dossier must contain evidence, documents proving traces, materials, things related to the crime on the person, residence, workplace, or means of the alleged offender; documents and grounds determining that the person would escape or destroy evidence.

- In cases where the Procurator directly meets and questions the temporary detainee in urgent cases to consider approval or disapproval of the arrest warrant, the Procurator must notify the Investigator and the Investigation Officer to coordinate the examination. The Investigator and the Investigation Officer are responsible for supporting the Procurator in meeting and questioning the temporary detainee in urgent cases. The statement recorded by the Procurator must be included in the case file.

- The decision to detain the temporary detainee in urgent cases must be issued within 12 hours from when the Investigation Agency detains the person or receives the temporary detainee (without requiring the Procuracy's approval of the arrest warrant). The decision to detain the temporary detainee in urgent cases can be issued before or with the arrest warrant.

- After receiving the approval of the arrest warrant for the temporary detainee in urgent cases, the Investigator must document the arrest of the temporary detainee in urgent cases at the detention facility. The witness for this documentation is an officer of the detention facility.

- In instances where the Investigation Agency handling the case files requests another Investigation Agency or individuals as prescribed in point b, point c, clause 2, Article 110 of the Criminal Procedure Code 2015 to assist in detaining the person in urgent cases, the assisting agency and individuals must immediately notify the requesting Investigation Agency to receive the detainee and related documents, and coordinate to escort the detainee to the headquarters of the Investigation Agency. The cooperation request documents must be included in the case file.

The Investigation Agency that issued the urgent detention order may fax or electronically send a copy of the order to the cooperating agency or individuals but must later send the original to include in the case file.

2. Guidance on approval of detention orders in case the temporary detainee is pressed charge in Vietnam

Approval of detention orders in case the temporary detainee is pressed charge in Vietnam per Article 16 of Joint Circular 04/2018/TTLT-VKSNDTC-BCA-BQP is as follows:

- In case of prosecution of the temporary detainee, at least 24 hours before the detention period or the extension of detention ends, the Investigation Agency must submit the prosecution approval dossier and the temporary detention order to the same-level Procuracy. If additional evidence and documents arise after submitting the dossier, the Investigation Agency must promptly forward them to the Procuracy. The approval process for the prosecution decision is conducted simultaneously with the approval process for the temporary detention order.

If the temporary detention period has not expired, the Investigation Agency requests the approval of the prosecution decision and temporary detention order. If inadequate grounds exist for prosecution and detention but adequate grounds for detention extension are present, the Procuracy requires the Investigation Agency to issue the detention extension decision and promptly send it for Procuracy approval. During the extended detention period, the Investigation Agency must hasten the collection and consolidation of evidence and documents, and promptly submit them to the Procuracy for approval of the prosecution decision and temporary detention order.

- If the Procuracy does not approve the prosecution decision and temporary detention order, it will issue a decision to cancel the prosecution decision, disapprove the temporary detention order, and require the Investigation Agency to immediately release the detained person; if the Procuracy has already approved the detention extension, it will issue a decision to release the detainee.

- If the prosecution is justified, but temporary detention is unnecessary, the Procuracy will approve the prosecution decision and disapprove the temporary detention order; if necessary, require the Investigation Agency to apply other preventive measures against the accused.

- The approval request dossier for the prosecution decision and temporary detention order as prescribed in clause 1, Article 16 of the Joint Circular 04/2018/TTLT-VKSNDTC-BCA-BQP includes:

+ A written request for approval clearly stating the reasons, along with the related detention dossier; the temporary detention order for the accused;

+ The prosecution decision approval request dossier as prescribed in clause 5, Article 10 of Joint Circular 04/2018/TTLT-VKSNDTC-BCA-BQP.

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