Door Opens for Future Accountability, Closes for Lawyers
(New York) – New Vietnamese government regulations on police investigations improve on past rules but fall well short of the deep reforms needed to curb widespread police abuses, Human Rights Watch said today.
The Ministry of Public Security’s new Circular 28 entitled “Regulating the Conduct of Criminal Investigations by the People’s Public Security” will go into effect on August 25, 2014, and supplement existing regulations.
“Abuses by Vietnam’s police have grown rampant in recent years because the government has failed to rein in officials who violate rights,” said Phil Robertson, deputy Asia director. “If there is political will to seriously enforce them, then these new police regulations could start a process of ensuring police abuses are investigated and prosecuted.”
Circular 28 makes a number of positive changes over existing regulations. It sets out that the first principle for conducting a police investigation is to “comply with the Constitution and laws; respect the interests of the State, human rights, and the rights and legitimate interests of offices, organizations and individuals” (article 4). The Circular provides clarification for implementation of the existing regulation, Ordinance 23 on the “Organization of Criminal Investigation,” which makes no mention of “human rights” or the need for the rights and interests of individuals to guide investigations. Circular 28 also prohibits police investigators “from obtaining coerced statements or coercively planting statements, or using corporal punishment in any form” (article 31). It also prohibits investigators from “ask[ing] or harass[ing] for any favor or benefit in any form from the accused person, the detainee or their loved ones, or any individual, office or organizations related to the case” (article 31).
Circular 28 also requires that police officers tasked with investigation work “take responsibility before their superiors and before the law for all activities and decisions they make” (article 4), which may improve accountability for actions taken. However, clarification is needed from the Ministry of Public Security that “responsibility before the law” should not be overridden by “responsibility before their superiors,” especially when superiors may have engaged in abuses.
Circular 28 also contains a number of provisions that could bring some accountability to the inspection of detention centers, and actions to resolve complaints and accusations of police misconduct and abuses.
“If the Vietnamese government is serious about ending police abuses, Circular 28 could provide a good start,” Robertson said. “But no one should assume that progress can be made unless top levels of the government are wholly committed to ensuring effective police reform.”
Problematic Regulations; Due Process Concerns
Circular 28 also contains a number of highly problematic regulations. For example, its provisions place too much emphasis on the role of the commune police, who are the least professional of the country’s police. It is not evident that the commune police can effectively fulfill their specified responsibilities under the Circular, including “carry[ing] out the preliminary verification of the crime in order to categorize the case” (article 27) and “taking statements” (article 28).
The commune police have the least resources and training in handling suspects and interrogations and have frequently been implicated in beating suspects in custody. Assigning them investigation tasks with vague instructions merely facilitates the possibility they may use abusive methods to obtain confessions and evidence.
The Circular also uses language that presumes criminality, such as by referring to investigation suspects as “criminals” (nguoi pham toi) (article 28). This raises concerns about the presumption of innocence before the law of individuals not yet found guilty by a court.
Circular 28 constricts rather than expands the role of defense lawyers, who are crucial for protecting the due process rights of criminal suspects. Under article 38, lawyers and legal assistants may be subject to disciplinary measures for “carrying out activities that prevent or cause difficulties to investigation work such as… preventing [someone from giving] a statement, disclosing secrets… or filing baseless complaints or petitions.” Circular 28 even seems to encourage police investigators to “collect evidence and documents that prove the act of causing difficulties to their investigation work” by making use of all methods at their disposal including “sound and video recordings and other means.” These provisions on legal counsel give too much power to police investigators to arbitrarily decide which defense activities are appropriate and which should be punished.
On August 7, the Vietnam Bar Federation, the national bar association representing lawyers throughout the country, sent a letter to Public Security Minister Tran Dai Quang requesting that the Ministry of Public Security abolish or amend article 38. According to the bar federation, the article treats defense counsel as unequal to police investigators, which may lead to abuses of power. On August 16, the Hanoi Bar Association planned a conference to discuss Circular 28. However, the conference was cancelled at the last minute after the police intervened with the managers of the rented venue, which then told the lawyers that it had become unavailable.
“Lawyers should not have to struggle to meet to discuss new regulations that will affect them and their clients,” Robertson said. “Vietnam can’t expect to become a country that upholds the rule of law if it obstructs lawyers from doing their jobs.”