Bản tiếng Việt tại đây: Lạm dụng biện pháp tạm giam trong tố tụng hình sự Việt Nam: Thực trạng và giải pháp
Abuse of Pretrial Detention in Vietnam’s Criminal Procedure: Current Situation and Solutions
Author: Dr. Nguyễn Quang Anh, Lawyer
- Director of Sao Việt Law Co., Ltd.
Abstract: This article analyzes the abuse of pretrial detention in Vietnam’s criminal procedure from an interdisciplinary perspective, encompassing criminal procedure law, human rights, criminal psychology, and legislative studies. Despite stricter regulations in the 2015 Criminal Procedure Code regarding conditions for pretrial detention and the criminalization of unlawful detention under the 2015 Penal Code, practical implementation reveals significant shortcomings, as evidenced by the consistently high rate of pretrial detention in Vietnam. Detainees, presumed innocent, often endure harsher or even worse conditions than convicted prisoners, creating pressure to confess or provide statements favorable to investigative authorities to escape detention. This phenomenon is considered a form of "indirect coercion." Through an evaluation of legal provisions and their practical application, the article highlights the gap between law and practice. Drawing on international standards, in-depth analysis of human rights, and criminal psychology, the author proposes specific reform recommendations: reinforcing the presumption of innocence, applying pretrial detention only when absolutely necessary and prioritizing alternative measures; requiring procedural authorities to provide clear legal grounds for approving detention; improving detention conditions and enhancing oversight of interrogation practices; and amending legal provisions to prevent and eliminate the abuse of pretrial detention as a tool for "indirect coercion."
Keywords: Pretrial detention; abuse of pretrial detention; coerced confession; torture; presumption of innocence; human rights.
1. Introduction
Pretrial detention is the most stringent preventive measure in criminal procedure, aimed at isolating suspects or defendants from society during investigation, prosecution, and trial phases. In principle, pretrial detention should only be applied when absolutely necessary for procedural purposes and must not serve as punishment for individuals not yet convicted. Vietnam’s 2013 Constitution enshrines the presumption of innocence, stating that “a person accused of a crime shall be considered innocent until proven guilty in accordance with legal procedures…” (Article 31, 2013 Constitution). However, over the years, procedural authorities have developed a reliance on pretrial detention, with many investigators and prosecutors resorting to detention at the slightest provocation rather than considering less invasive preventive measures. The abuse of pretrial detention not only severely violates the rights to personal liberty and dignity of unconvicted individuals but also risks wrongful convictions and fosters coerced confessions and torture.
In reality, most cases of coerced confessions and torture occur during the period of temporary detention or pretrial detention. Former Deputy Prosecutor General of the Supreme People’s Procuracy, Nguyễn Hải Phong, once admitted: “It can be affirmed that all cases of coerced confessions and torture occur during temporary detention… torture cases occur during pretrial detention.” This underscores that the pretrial detention phase is the most sensitive, where the human rights of the accused are most vulnerable. Even without direct torture, prolonged detention under harsh conditions can itself exert psychological pressure, compelling suspects to confess—a form of “indirect coercion.”
In practice, some suspects face extended pretrial detention and restricted access to lawyers and family, particularly in cases involving special circumstances (e.g., breadwinners detained while elderly parents or young children lack care). Under such extreme stress, their resistance weakens, leading to confessions despite initial claims of innocence as a quick way to end temporary incarceration. The phenomenon of “confessing to be released on bail” has been documented in several wrongful conviction cases in Vietnam, where defendants, after prolonged detention, retract confessions in court, stating they confessed due to unbearable mental and physical pressure in detention facilities.
Stemming from the need to ensure human rights in criminal procedure and prevent wrongful convictions, recent years have seen lawmakers and legal scholars in Vietnam focus on reforming the pretrial detention regime. The enactment of the 2015 Criminal Procedure Code (CPC) and the 2015 Law on Temporary Detention and Custody reflects efforts to address longstanding issues. Notably, the 2015 CPC imposes stricter conditions for pretrial detention and introduces oversight mechanisms (e.g., audio and video recording of interrogations), while the 2015 Penal Code criminalizes the act of “abusing authority to unlawfully detain or hold individuals” (Article 377) with penalties of up to 12 years’ imprisonment. These changes provide a crucial legal foundation to curb abuses of power in detention and prevent coerced confessions and torture.
However, the question remains: Is the current legal framework sufficient and effective in ending the abuse of pretrial detention as a form of “indirect coercion”? This article delves into the issue through an interdisciplinary lens—combining criminal procedure law, human rights standards, criminal psychology, and legislative experiences—to comprehensively identify shortcomings and propose suitable reforms.
2. Pretrial Detention from the Perspective of Vietnam’s Criminal Procedure Law
Legal Basis: The foundational principles governing pretrial detention are the presumption of innocence and respect for individual liberty. A person not yet convicted must be treated as innocent and deprived of liberty only when no other measures can ensure procedural objectives. This principle is clearly reflected in the 2013 Constitution (Clause 1, Article 31): “A person accused of a crime shall be considered innocent until proven guilty in accordance with legal procedures…” The presumption of innocence requires procedural authorities to exercise caution when applying liberty-restricting measures, particularly pretrial detention. Detention should not be considered “default” simply because a suspect has been charged, as this implicitly presumes guilt, contradicting the presumption of innocence. Thus, criminal procedure law must be designed to ensure pretrial detention is a last resort, applied minimally after considering all alternative measures.
Current Legal Provisions: The 2015 CPC provides relatively specific regulations on the grounds and conditions for pretrial detention in Article 119. However, Clause 1 of Article 119 allows detention of suspects or defendants charged with very serious or particularly serious crimes without additional conditions. This provision is problematic, as it equates the severity of the crime with the need for preventive measures, facilitating automatic detention based solely on the gravity of the charge. In practice, many suspects charged with serious or very serious crimes, despite having clear personal backgrounds and no signs of obstructing proceedings, are detained mechanically. This legal “loophole” enables the abuse of pretrial detention.
Practical Implementation: Judicial reports indicate that pretrial detention is applied in the vast majority of criminal cases. Repeated remands for supplementary investigation and case cancellations for reinvestigation also prolong detention periods. Although the 2015 CPC limits the number of remands (up to two times during prosecution and similarly at first-instance and appellate trials), if a case is canceled for reinvestigation, the detention period is often recalculated from the start, resulting in potentially lengthy pre-trial detention. This not only creates significant psychological pressure on detainees but also risks indirect coercion, as analyzed below.
In summary, Vietnam’s reality shows that despite legal provisions protecting detainees’ rights, implementation remains inconsistent, with loopholes allowing the humanitarian purpose of pretrial detention to be distorted. Instead of serving objective investigative purposes, detention is abused as a tool to pressure suspects into confessing.
3. Pretrial Detention from the Perspective of International Human Rights
From the perspective of international human rights law, depriving an unconvicted person of liberty should be a last resort, applied for the shortest possible duration. Numerous international instruments indirectly or directly require states to minimize pre-trial detention. For instance, the 1966 International Covenant on Civil and Political Rights (ICCPR) stipulates that everyone has the right to liberty and security of person, and no one shall be arbitrarily deprived of liberty. Detained individuals have the right to trial within a reasonable time or to be released pending trial (Article 9, ICCPR). Thus, the ICCPR establishes clear principles: pretrial detention must have justified reasons and be as brief as possible; otherwise, release is required.
The 1984 United Nations Convention Against Torture (UNCAT), to which Vietnam acceded in 2015, aims to prevent all forms of torture, cruel, inhuman, or degrading treatment. In criminal procedure, pre-trial detention creates an environment conducive to torture and coerced confessions. The UN Human Rights Committee, in General Comment No. 35 on Article 9 of the ICCPR, emphasizes, “Pre-trial detention must be exceptional, applied only when absolutely necessary and after determining no less restrictive measures are viable. Alternatives (e.g., bail, house arrest) must be considered before detention.” Similarly, the UN Special Rapporteur on Torture has warned of the link between prolonged pretrial detention and risks of coerced confessions and torture. A report by Penal Reform International (PRI), citing the UN Committee Against Torture, notes: “Pre-trial detention undermines fair trial rights and the presumption of innocence. It increases the risk of coerced confessions or admissions through torture or cruel treatment.” In other words, detainees are in a highly vulnerable position, entirely dependent on detaining authorities motivated to extract information or confessions. Practices in many countries show some investigators view detention as an “effective pressure tool,” as harsh conditions and isolation erode suspects’ resolve to maintain innocence.
International human rights law also prioritizes excluding evidence obtained through torture or coercion. Article 15 of UNCAT mandates, “Each State Party shall ensure that any statement established to have been made as a result of torture shall not be invoked as evidence in any proceedings.” This aims to eliminate incentives for using torture or coercion during investigations. Although Article 15 specifically addresses evidence obtained through “torture,” the UN Committee Against Torture interprets all forms of cruel, inhuman, or degrading treatment aimed at coercing confessions as equivalent to torture. Thus, whether through direct torture or indirect coercion via prolonged detention causing mental pressure, both are considered serious violations, and resulting confessions lack evidentiary value.
At the regional level, the European Court of Human Rights (ECHR) has issued numerous rulings condemning excessive pre-trial detention. Under the European Convention on Human Rights (Article 5), detention must be strictly scrutinized for necessity and reasonable duration. Article 5 lists lawful grounds for deprivation of liberty (including detention for trial) and requires detained individuals to have the right to challenge the legality of their detention. The ECHR has repeatedly ruled that authorities must provide “substantiated reasons” for extending detention, and defendants are entitled to trial within a “reasonable time” or release pending trial. Violations may lead to findings of breaches of Article 5 and compensation for those detained excessively.
From a human rights perspective, the presumption of innocence, recognized in both international and Vietnamese law, is critical. As noted, Vietnam’s 2013 Constitution (Clause 1, Article 31) affirms that an accused person is considered innocent until proven guilty. This principle demands that measures applied to the accused before conviction respect their status as innocent. Arbitrary detention contradicts this spirit, implicitly presuming guilt. Criminal procedure law must ensure detention is the least applied measure, used only after exhausting alternatives, and detainees must be treated humanely, not as predetermined criminals.
In conclusion, from a human rights perspective, the abuse of pretrial detention can simultaneously violate multiple fundamental rights, including the right to personal liberty, the presumption of innocence, the right to a fair trial within a reasonable time, and the right to be free from torture or cruel, inhuman, or degrading treatment.
4. Pretrial Detention from the Perspective of Criminal Psychology
Psychological Trauma for Detainees: From a criminal psychology perspective, detention in harsh, socially isolating conditions can cause significant psychological trauma, especially for first-time detainees. Many report experiencing panic, anxiety, and depression when separated from family, lacking legal support, and uncertain about their case’s resolution. In the initial weeks, detainees often suffer insomnia, extreme fear, and mental collapse, with feelings of despair, loneliness, and loss intensifying. The phenomenon of “detention shock” often occurs during this period, leading to mental exhaustion and a state of “learned helplessness.” Detainees undervalue themselves, lose the will to resist, and accept their fate, becoming dependent and compliant with investigators, willing to do anything to improve treatment or escape their dire situation, including confessing to crimes they did not commit.
Risk of False Confessions and Wrongful Convictions: Global studies in criminal psychology show that mental pressure during detention and interrogation can lead to false confessions or wrongful convictions. While it may seem counterintuitive for an innocent person to confess, it occurs more frequently than assumed. According to the Innocence Project (USA), approximately 25% of cases exonerated by DNA evidence involve false confessions from innocent defendants. Factors such as prolonged isolation, relentless interrogations, threats, or promises of leniency can break even innocent individuals, leading to false confessions to escape dire circumstances. Extreme stress and mental/physical exhaustion from harsh detention conditions significantly reduce resilience, resulting in unreliable statements. Detainees suffering from sleep deprivation, exhaustion, or panic may experience “memory distrust syndrome,” questioning their own memories and even wondering if they committed a forgotten crime. In such confusion, if investigators present a narrative and urge confession, detainees may accept the suggested story and sign prepared confessions. This has occurred in notable wrongful conviction cases, such as the Central Park Five in the USA, where five teenagers were coerced into confessing to a rape they did not commit. Years later, DNA evidence and the true perpetrator’s confession exonerated them, highlighting the devastating impact of “tunnel vision” in investigations. As the Innocence Project has noted: an innocent person may give a false confession due to extreme stress, mental exhaustion, or promises of leniency, such as ‘going home early’ if they confess
Coerced Confessions, Torture, and Wrongful Convictions in Vietnam: In Vietnam, cases like those of Nguyễn Thanh Chấn and Huỳnh Văn Nén painfully illustrate how coerced confessions and torture led to innocent people confessing. These victims endured prolonged detention, intense interrogations, and even torture, forcing them to confess to escape, only to be exonerated years later. Investigations revealed that authorities used torture and coercion to extract confessions in Chấn’s case. Coercion can occur not only through physical violence but also through psychological tactics: detaining suspects in oppressive, isolating conditions until they are desperate to escape, even by confessing to uncommitted crimes. Media analyses note that victims like Chấn and Nén did not confess willingly or reenact crime scenes convincingly due to guilt but out of extreme fear from physical and mental torment.The horror of coerced confessions and torture has transformed honest individuals into those who have lost all will to resist, completely manipulated.
“Person-Based Case” Effect and Confirmation Bias: Beyond affecting detainees, the abuse of pretrial detention creates dangerous psychological effects within the justice system, known as the “person-based case” mindset or “tunnel vision.” This occurs when investigators and prosecutors, having detained a suspect, focus solely on confirming guilt, ignoring exculpatory evidence. Detention creates an implicit assumption that “the person must be guilty, or they wouldn’t be detained.” This leads to confirmation bias, where only incriminating evidence is prioritized, and exculpatory evidence is dismissed. If evidence contradicts the guilt hypothesis, it is often disregarded as unreliable, reinforcing the initial detention decision. This natural human tendency to avoid admitting mistakes is particularly dangerous in criminal proceedings, reducing objectivity and increasing wrongful conviction risks.
Performance Pressure and Avoiding Mistakes:
Subjectively, those conducting criminal proceedings face pressures related to performance and professional responsibility. If a case concludes with a suspect being found innocent after prolonged pretrial detention, it triggers significant consequences: procedural authorities must issue public apologies, the state must provide compensation, and officials responsible for the wrongful detention may face disciplinary action. Fearing the stigma of causing a miscarriage of justice, some individuals or agencies develop a dangerous mindset of “pushing for a conviction” in cases where detention has already occurred. They rationalize that “it is better to convict wrongly than to release wrongly”—releasing an innocent person (declaring them not guilty) would expose the error of detention, whereas convicting them (even with unconvincing evidence) avoids admitting fault. This negative mindset—a manifestation of a “performance-driven culture” and lack of courage—is highly alarming, as it contradicts the presumption of innocence fundamental to a civilized justice system. In practice, public discourse has highlighted cases where courts issue sentences exactly matching or not exceeding the time the defendant has already spent in detention, resulting in immediate release post-trial (the phenomenon of “sentences equaling detention time”). Numerous instances have been recorded where courts pronounce sentences precisely equal to the days spent in detention, leading the public to question the objectivity of such judgments and suspect that they are issued merely to legitimize prior detention. Formally, procedural authorities avoid accusations of wrongful conviction because the defendant is deemed “guilty” and has served a sentence matching the detention period, but in essence, these may be unresolved cases of injustice.
The “person-based case” mindset creates a cascading effect: since “once detained, there must be a conviction,” subsequent procedural stages often defer to the outcomes of prior ones. Prosecutors, when approving investigation conclusions, rarely dare to dismiss a case due to innocence, as doing so would imply that the investigative agency wrongfully detained the individual. Courts also seldom issue outright acquittals (with rates consistently below 1% for many years), as declaring a defendant innocent would mean both the investigative agency and the procuracy erred in detaining and prosecuting an innocent person. Consequently, except in cases of clear exoneration (e.g., undeniable alibi evidence), most cases involving pretrial detention almost certainly result in a guilty verdict. In practice, courts never issue prison sentences shorter than the time already served in detention; sentences are either equal to or longer than the detention period. This implies that if pretrial detention is prolonged before trial, the sentence is likely “adjusted” to at least match the duration of detention already served.
Impact on Public Trust in Justice: The above analysis reveals a paradox: pretrial detention, meant to protect proceedings, distorts justice when abused. It pressures both detainees and authorities, fostering a dangerous mindset: “If detained, they must be convicted.” This contradicts the presumption of innocence, which requires release if evidence is insufficient. Reducing detention abuse is essential to improve trial quality and prevent wrongful convictions. Lower detention rates would encourage objective evidence evaluation, free from the “person-based case” bias. Conversely, maintaining high detention rates hinders judicial reform, as the guilt assumption takes root early in cases.
Ultimately, the abuse of pretrial detention severely undermines the credibility of the justice system and public trust. Each wrongful conviction case resulting from unjust detention that comes to light prompts citizens to question: “How many other innocent people are in prison?” Public confidence in Vietnam’s justice system has long been eroded due to numerous wrongful convictions. An effective justice system requires public cooperation and trust; however, if the detention of suspects is perceived as arbitrary and irresponsible—or even as “detain first, find evidence later”—people will fear and distrust the legal system. They may hesitate to report crimes (fearing they might wrongly harm the innocent), be reluctant to serve as witnesses (fearing entanglement), and, in particular, be unwilling to cooperate with investigative authorities (due to a lack of faith in their impartiality). Therefore, reducing instances of wrongful detention is not only about avoiding compensation costs but, more importantly, about safeguarding the integrity and humanity of the justice system.
5. Pretrial Detention from a Legislative Perspective: International Experiences and Lessons for Vietnam
Many countries recognize the downsides of pretrial detention and have reformed legislation to balance crime prevention with protecting the rights of the unconvicted. Global trends include narrowing the scope and duration of detention, promoting alternatives, and enhancing oversight. Key examples include
- United States: Unlike Vietnam, the U.S. system (especially at the federal and many state levels) prioritizes bail. The Eighth Amendment prohibits excessive bail, and the 1984 Bail Reform Act mandates that most defendants are entitled to release pending trial via bail or other conditions. Detention is ordered only if prosecutors prove at a hearing that no other measures ensure community safety or the defendant’s appearance (the “presumption of release” principle).
- Europe (France, Germany, Italy, etc.): Continental European countries limit detention and prioritize release. Laws allow detention only with clear evidence of flight risk. obstruction, or recidivism risk, with strict time limits. For example, France caps initial detention at four months for less serious crimes, with detainees able to appeal for release. In Germany, if investigations exceed six months without conclusion, higher courts review continued detention to avoid excessive durations. EU countries adhere to Article 5 of the ECHR, ensuring stringent conditions and time limits, with the ECHR establishing robust case law mandating detention as a last resort after considering alternatives.
- United Kingdom: Under the common law system, the UK strongly minimizes detention. The 1976 Bail Act presumes all defendants are entitled to bail unless specific reasons justify denial. Custody time limits ensure release if trials are delayed beyond set periods, unless prosecutors justify extensions with compelling reasons.
In summary, international experiences emphasize clear legal limits on detention grounds and duration, robust judicial review, expanded alternative measures (e.g., bail, supervised release), and humane detention conditions meeting human rights standards.
6. Policy and Legal Reform Recommendations to Curb Pretrial Detention Abuse
Based on the above analysis and international experiences, the following recommendations aim to address the abuse of pretrial detention as “indirect coercion” in Vietnam, requiring synchronized legislative, judicial, and attitudinal changes:
- Amend Detention Laws: Repeal Clause 1, Article 119 of the 2015 CPC, which allows detention for very serious or particularly serious crimes without additional conditions. This equates crime severity with detention necessity, enabling abuse. If immediate repeal is not feasible, amend it to permit detention only in cases of clear evidence, such as arrests in flagrante delicto, ensuring detention is reserved for high-risk cases.
- Expand Exemptions from Detention: Clause 4, Article 119 of the 2015 Criminal Procedure Code currently exempts from pretrial detention pregnant women, those raising children under 36 months, the elderly, and the seriously ill (provided they have a clear place of residence). However, this provision needs further expansion. It is recommended to include additional exemptions from pretrial detention for: (a) single parents directly raising minor children (e.g., children under 14 or 16 years old); (b) the sole family member responsible for caring for severely disabled relatives, those with life-threatening illnesses, or the extremely elderly. Detaining such individuals can lead to significant social consequences and subject them to intense psychological pressure, potentially resulting in “indirect coercion,” as analyzed. Expanding the scope of exemptions from pretrial detention would reflect humanitarian principles and align with the constitutional emphasis on protecting the best interests of children and dependents.
- Specify Grounds for Detention Approval: Require the Procuracy to clearly specify the legal grounds in decisions approving pretrial detention. Currently, although Article 119 of the Criminal Procedure Code lists grounds for detention (e.g., violation of other preventive measures, lack of a fixed residence, absconding, continued criminal activity, or obstruction of investigations), many decisions remain vague, citing only “ensuring prosecution and trial,” which lacks specificity and contradicts the spirit of the law. Clear, quantifiable criteria should be established to assess “risk of absconding” or “risk of obstructing investigations” to avoid ambiguity and curb arbitrary detention. The Supreme People’s Procuracy should issue guidelines mandating the inclusion of specific grounds in detention approvals to ensure transparency, enhance prosecutors’ accountability, and facilitate detainees’ rights to challenge decisions or enable courts to review the legality of detention.Require the Procuracy to clearly state legal grounds in detention approval decisions.
- Promote Alternative Measures: The 2015 Criminal Procedure Code has stipulated several alternatives to pretrial detention, such as bail, financial guarantees, restrictions on leaving one’s place of residence, and local supervision (Articles 121–123). However, their practical implementation remains highly limited. Priority should be given to applying supervised release measures for suspects with good personal backgrounds, clear residences, first-time offenses, or less serious crimes, instead of automatically resorting to detention. This approach not only protects individual liberty but also alleviates overcrowding in detention facilities and reduces state costs. To promote alternative measures, it is recommended to amend the Criminal Procedure Code to mandate the consideration of alternatives before deciding on detention. Concurrently, regulations on the amount of financial guarantees and approval procedures for release should be refined to facilitate suspects’ access to their right to release. Additionally, the adoption of electronic monitoring (e.g., ankle bracelets) could be explored to track suspects on release as a complementary measure.
- Reinforce Presumption of Innocence: It is necessary to change the mindset within procedural authorities that pretrial detention is not a default measure whenever a case is initiated. Detention must be regarded as a last resort, employed only when other measures cannot achieve procedural objectives. Every investigator and prosecutor must clearly understand that detention is not a form of punishment and must not be used to intimidate or pressure suspects into confessing. To achieve this, enhanced training and education on human rights and rule-of-law standards should be implemented, emphasizing respect for citizens’ liberty. Simultaneously, cases of unlawful detention abuse must be strictly addressed (including criminal prosecution under Article 377 of the 2015 Penal Code for intentional abuse of detention authority).
- Streamline Procedures and Shorten Detention Periods: As analyzed above, a loophole contributing to prolonged pretrial detention is the process of repeatedly remanding cases for supplementary investigation and recalculating detention periods when a case is canceled for reinvestigation. To address this more thoroughly, regulations should be introduced to shorten detention periods in cases of reinvestigation or retrial. For example, if a case has undergone one trial but is canceled for reinvestigation, consideration should be given to releasing the suspect on bail if they no longer pose a danger, rather than automatically detaining them again from the outset. Additionally, it is recommended to amend the law to include provisions on compensation in criminal proceedings: in cases where a suspect is detained beyond the legally prescribed period or is detained but ultimately acquitted, the competent authorities must proactively address their responsibility to apologize and provide compensation to the wrongfully detained individual, rather than requiring victims to seek compensation themselves.
- Improve Detention Conditions and Oversight: It is essential to improve the quality of detention management to ensure that detainees are treated humanely, minimizing psychological pressure. The environment of temporary detention centers and pretrial detention facilities must be enhanced to meet humanitarian requirements and align with international standards (Vietnam, as a signatory to UNCAT, must comply). The public security sector should be allocated adequate funding to upgrade detention facilities and address overcrowding. Additionally, external oversight of pretrial detention activities needs to be strengthened. A proposal previously raised by many National Assembly delegates and experts is to separate the management of detention facilities from investigative agencies. If detention facility management is transferred to an independent entity (e.g., under the Ministry of Justice, distinct from local police), each interrogation or extraction of a suspect would involve third-party oversight, reducing the risk of coerced confessions and torture. In the current context, immediate “soft” oversight measures can be implemented: enhancing the procuracy’s role in monitoring detention, ensuring mechanisms for lawyers and family members to visit detainees (avoiding situations where investigators abuse their authority to prohibit visits for months, increasing isolation and pressure on suspects). Transparency and external connectivity for detainees will help curb the “secrecy” in detention and interrogation, which creates a conducive environment for coercion and torture.
- Enhance Lawyers’ Role in Investigations: The presence of a lawyer from the outset plays a significant role in preventing those who intend to engage in coerced confessions, torture, or the abuse of pretrial detention. Therefore, it is necessary to continue reforming criminal procedures to facilitate lawyers’ access to cases: simplifying the issuance of defense certificates, strictly prohibiting and severely punishing those who obstruct lawyers from meeting suspects or accessing case files. The presence of lawyers will enable the timely detection and reporting of coerced confessions or torture (if any), while also curbing potential procedural violations.
- Promote Adversarial Proceedings: At trial, the principle of adversarial proceedings must be upheld, and the opinions of the defendant and their lawyer should be considered with an open mind. If there are allegations of coerced confessions during pretrial detention, the court must proactively request investigation and verification, rather than passively dismissing them due to a lack of “clear evidence.” When adversarial proceedings are conducted substantively, any contradictory or unreasonable confessions will be thoroughly scrutinized; if there are indications that the defendant confessed under coercion, the court should boldly declare such statements inadmissible as evidence. A justice system that prioritizes adversarial proceedings will significantly reduce wrongful convictions based solely on involuntary confessions. This not only pressures investigative agencies to refrain from relying on coercive tactics but also provides opportunities for those subjected to coerced confessions to be exonerated in a timely manner.
- Strengthen Accountability and Judicial Review: It is necessary to strengthen accountability and sanctions for individuals issuing pretrial detention decisions that lack sufficient grounds or violate the law. Currently, Article 74 of the Criminal Procedure Code allows detainees to challenge procedural decisions or actions, but this mechanism is, in practice, insufficiently robust and often ineffective. It is recommended to study the establishment of an independent judicial review mechanism for pretrial detention: for instance, if an investigation remains unresolved after a certain period (e.g., 2 or 3 months), any extension of detention by the investigative agency must require additional court approval. Consideration could be given to adopting a “detention review judge” model (similar to the habeas corpus procedure in the common law tradition), where the court acts as a third party overseeing detention decisions made by investigative agencies and the procuracy. If procedural authorities abusively extend detention periods, detainees or their lawyers should have the right to request the court to review and grant release.
In summary, the above recommendations all aim at a common goal: ensuring that pre-trial detention is applied for its proper function, serving the proceedings in an objective and effective manner, rather than being abused as a tool to exert pressure for confessions.
7. Conclusion
Pretrial detention in criminal procedure is akin to a double-edged sword: on one hand, it is necessary to prevent suspects from absconding, destroying evidence, or continuing criminal activities; on the other hand, if abused, it can severely violate human rights and lead to wrongful convictions. Vietnam’s judicial practice has historically seen widespread “abuse of pretrial detention,” treating it as a form of pre-trial punishment and a means to pressure suspects into confessing. Recent reforms have aimed to curb this issue, emphasizing caution in applying detention, promoting alternative measures, and strengthening oversight to prevent coerced confessions and torture.
However, to truly bring these humanitarian goals to fruition, significant changes are needed across multiple fronts. The reform recommendations outlined above, from legislative perspectives (amending imprecise regulations) to organizational and attitudinal aspects (training, oversight, and shifting practical mindsets), must be implemented cohesively. Furthermore, through the study of this issue, the article proposes a new theoretical approach: emphasizing the need to control power in the pre-trial phase through the involvement of an independent judicial mechanism to oversee detention (similar to the “detention review judge” model) and advocating for the quantification of detention grounds into specific criteria to reduce arbitrariness and indirectly prevent the risk of coercion through detention.
Above all, the principle of presumption of innocence must permeate all procedural activities - those not yet convicted must be treated as innocent, entitled to fundamental rights, and subjected only to the minimum restrictions necessary for investigation. Only then can pretrial detention avoid being distorted into a tool for indirect coercion, and the criminal justice system minimize wrongful convictions. Ensuring that “no innocent person is wrongfully punished, and no criminal escapes justice” is the ultimate goal of criminal justice. To achieve this, the abuse of pretrial detention must be eradicated, restoring its rightful purpose within a progressive and humane procedural framework.
References:
- Constitution of the Socialist Republic of Vietnam (2013). Hanoi: National Political Publishing House. (Articles 20 and 31 on inviolability of the person, presumption of innocence, and prohibition of coercion and torture).
- Criminal Procedure Code (2015). Hanoi: National Political Publishing House. (Articles 119, 173, 174, 183, and 186 on detention grounds, procedures, detainee rights, remand limits, and recording interrogations).
- Law on Temporary Detention and Custody (2015). Law No. 94/2015/QH13. Hanoi: People’s Police Publishing House. (Regulations on detention management, detainee rights, and procuracy oversight).
- Penal Code (2015, amended 2017). Hanoi: National Political Publishing House. (Articles 373, 374, and 377 on crimes of torture, coerced confessions, and unlawful detention).
- International Covenant on Civil and Political Rights (1966). United Nations Treaty Series, vol. 999, p. 171. (ICCPR—rights to liberty, security, and trial within a reasonable time or release).
- United Nations Convention Against Torture (1984). New York: United Nations. (UNCAT—prohibition of torture, cruel treatment; Article 15 on excluding evidence obtained through torture).
- European Court of Human Rights (2018). Case law on Article 5 ECHR (Right to liberty and security)—Pre-trial detention cases against Russia. Strasbourg: Council of Europe. (ECHR case law on reasonable detention duration and necessity).
- Nguyễn Hải Phong (2015). Speech at the 2015 Procuracy Conference: “All coerced confession and torture cases occur during temporary detention… Torture cases occur during pretrial detention.”
- Trần Văn Độ (2015, June 2). “Avoid Overusing Temporary Detention and Pretrial Detention.” Tuổi Trẻ Online. (Statement by Lieutenant General, former Deputy Chief Justice of the Supreme People’s Court, on changing the mindset of automatic detention).
- Fair Trials & Institute for Crime and Justice Policy Research (2019). Pre-trial detention and its overuse: Evidence from ten countries. London: ICPR & Fair Trials. (Comparative study on detention abuse; the UK’s low detention rates are due to bail presumption and 6-month limits).
- Vera Institute of Justice (2024, April 4). How the Criminal Legal System Coerces People into Pleading Guilty. Vera.org. (Analysis of detention pressure leading to guilty pleas, citing ~400,000 detained due to inability to pay bail).
- Innocence Project (n.d.). False Confessions. Retrieved 2023, from https://innocenceproject.org. (Research on causes of false confessions: isolation, prolonged interrogations, stress, and promises of leniency).
- United Nations Office on Drugs and Crime (2021). Principles on Effective Interviewing for Investigations and Information Gathering. New York: UNODC. (Mendez Principles on non-coercive interviewing techniques).
- Báo Công lý (2018–2022). Series on judicial reform, addressing detention abuse and CPC improvements.
- Báo Nhân Dân (2018–2022). Articles on judicial reform and human rights in criminal procedure, emphasizing detention reduction and prevention of coercion and torture.
- Báo Pháp luật TP.HCM, Tuổi Trẻ Online, Dân Việt (2014–2021). Reports on wrongful convictions, “sentence equals detention time” cases, and public concerns about judicial credibility in cases like Hồ Duy Hải.
- Wikipedia tiếng Việt (n.d.). “Nguyễn Thanh Chấn Wrongful Conviction Case.” Retrieved 2023, from https://vi.wikipedia.org. (Summary of Chấn’s case, a prime example of coercion and torture leading to wrongful conviction).
