Two prosecutors (L) of Van Don District, Quang Ninh Province, inspect a local house of detention
Allowing suspects in bribery cases to be released on bail, as proposed in a draft circular by the Ministry of Justice, could spark off doubts in the effectiveness of the country’s fight against corruption, Pham Thanh Binh, a lawyer and CEO of law company Bao Ngoc, tells Vietweek.
It is the first guiding document on granting bail though the Code of Criminal Procedure was adopted as long ago as in 2003. It will allow suspects to be released on bail, though not all will be eligible (see box).
Vietweek: What is your opinion about the proposed circular?
Pham Thanh Binh: Arrest, police custody, temporary detention, house arrest, guarantee, deposit of money or property as bail are deterrent measures in the Criminal Code to facilitate investigation of cases. Of them, temporary detention is the most stringent one. But there are shortcomings in this – detention centers are overcrowded and the knock-on effects which will be difficult to control if the suspect is, for example, a company director. In some wrongful cases, temporary detention has had serious consequences for the detained persons.
The unnecessary detention of those who commit less serious offenses will cause losses to them in terms of their legitimate interests and place a financial burden on the government [to run the prisons].
Thus, it is necessary to consider granting bail instead of temporary detention.
There is an opinion that offenders who cause big economic losses could use ill-gotten property to post bail. What do you think?
Not all money or properties can be used to post bail. The draft circular stipulates that properties which are subject to disputes, distrainment, and seizure, and those with illegal origins cannot be used to post bail.
It also places responsibility on investigating authorities to examine the assets of a detainee before allowing their use as bail. Thus, in principle, detainees cannot use money or properties acquired by committing an offense to post bail.
Under the draft circular, corruption suspects are entitled to bail. What do you think about this?
In many other countries, bail is allowed mainly for economic offenders. I don’t think the proposed regulation is rational. Corruption crimes often cause big losses to the economy. Thus, allowing suspects to get bail may make people lose confidence in the effectiveness of the country’s fight against corruption and detract from its deterrence effect. The circular should not allow bail for corruption suspects.
The circular says investigating agencies, procuracies, and courts should decide the amount of bail. But it sets bail at a minimum of VND350 million even for especially serious offences. Are the amounts too low?
The amounts are acceptable. It is difficult to have a common level appropriate for all offenses. Thus, the circular can only stipulate the minimum amounts of bail.
Should we allow bail only for certain cases? For instance, economic offenders who do not cause serious losses…
Around the world, economic offenders are allowed to post bail. We should not restrict this to certain categories of offenders, except under certain circumstances.
The 2003 Code of Criminal Procedure does not specify which crime is bailable. The decision to allow a suspect to post bail depends on the nature of the criminal act, the extent of danger to society, and their background and wealth.
There is concern that assessing the background and wealth of an accused to decide whether they could be allowed to post bail could itself give rise to corruption. What do you think about this?
The regulation on allowing bail is a progressive one. It must not be discouraged just because of concerns that it could be exploited and there could be corruption.
The problems can be averted if the instructions for implementing the regulations are clear and detailed, oversight of their enforcement is strong, and punishment for violations is stringent.
FIVE OFFENSES FOR WHICH BAIL WILL NOT BE ALLOWED
Infringing upon national security; undermining peace; acts against humanity; and war crimes
Serious or very serious offenses related to drugs
Very serious offenses of intentionally or unintentionally infringing upon others’ life, health, honor, and dignity
Serious or very serious offenses of infringing upon the right to possession, including robbing, kidnapping for the purpose of appropriating property, extortion of property, snatching, and openly appropriating property
Acts causing great public discontent.
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By Bao Van, Thanh Nien News (The story can be found in the September 13 issue of our print edition, Vietweek)