Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
Viet Nam’s Criminal Procedure Code (2015), which is applicable to the prosecution of war crimes, states:
Article 110. Emergency custody
1. Emergency custody of a person is permitted in one of the following [situations]:
a) There [is] substantial evidence that such person is going to commit a horrific or extremely severe felony;
b) The accomplice committing the crime, or the perpetrator of the crime, who was identified by the crime victim or a person at the crime scene, must be [prevented] from escap[ing];
c) A person carrying criminal traces or a suspect whose residence, workplace or tools contain criminal traces must be [prevented] promptly from escaping or disposing [of] evidence.
2. The following individuals are entitled to issue an order of emergency custody:
a) Head and vice heads of investigation authorities;
b) 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;
4. Upon holding persons in emergency custody or taking in emergency detainees, investigation authorities and units assigned to investigate, within 12 hours, must take statements promptly, and individuals as stated in Point a and Point b, Section 2 of this Article must issue a temporary detainment order, arrest warrant and discharge order on the detainee. The emergency custody order and relevant documents must be delivered promptly to the equivalent Procuracy or competent ones for ratification.
Upon taking in detainees, investigation authorities must take statements promptly within 12 hours, and individuals as per Point a, Section 2 of this Article must issue a temporary detainment order, arrest warrant or release order on the emergency detainee. The emergency custody order and relevant documents must be delivered to the equivalent Procuracy for approval.
6. The [P]rocuracy must strictly administer the grounds for detainment as per Section 1 of this Article. The procurator, if necessary, shall meet the emergency detainee before approving or denying the order for emergency custody. The written record of the emergency detainee’s deposition, as made by the procurator, must be retained in the case file.
Upon receiving the written request for approval of [the] emergency custody order, the Procuracy must decide to approve or deny such order in 12 hours. If [t]he [P]rocuracy denies the emergency custody order, the individual making such order and investigation authority taking in the detainee must immediately discharge the detainee.
Article 114. Essential actions upon emergency custody, arrest or intake of arrestees and detainees
1. Upon holding a person in emergency custody, arresting persons or taking in arrestees and detainees, investigation authorities and units assigned to investigate must take statements promptly and, within 12 hours, make decisions on temporary detainment or discharge of the arrestee.
Article 117. Temporary detainment
4. The individual issuing the decision on temporary detainment, [with]in 12 hours [of] making such decision, must send the decision and supporting documents to the equivalent Procuracy or a competent Procuracy. If the temporary detainment is found [to be] unjustified or unnecessary, the Procuracy issues a decision on annulling the decision on temporary detainment. The individual issuing the decision on temporary detainment must immediately discharge the person on temporary detainment.