Under What Circumstances May the Police Detain or Arrest a Person?

Law Firm in Vietnam – Criminal Law- Under What Circumstances May the Police Detain or Arrest a Person?

No one shall be arrested without a decision of the People’s Court, or a decision/approval of the People’s Procuracy, except in cases of flagrante delicto. The arrest, detention, and custody of a person shall be governed by law.

The 2013 Constitution dedicates Chapter II to the rights of human beings, as well as the fundamental rights and obligations of citizens. Arrest is considered a preventive measure in criminal proceedings, applicable to persons under emergency custody. Below is a summary for ease of understanding regarding Detention and Arrest.

Detention (pursuant to Article 118 of the 2015 Criminal Procedure Code)

The police are permitted to detain persons under two main categories:

• Detention under criminal procedures (including four cases: emergency custody, arrest in flagrante delicto, voluntary surrender/confession, or pursuant to a wanted notice);
• Detention under administrative procedures (to prevent acts of disturbing public order, causing injury, or smuggling/illegally transporting goods across the border).

1. Detention under criminal procedures:

The police may detain persons in the following cases:

• Persons held in emergency custody.
• Persons arrested in flagrante delicto.
• Persons voluntarily surrendering or confessing to a crime.
• Persons arrested pursuant to a wanted notice.

2. Detention under administrative procedures:

The police may detain persons to immediately prevent or suspend acts such as:

• Disturbing public order.
• Inflicting bodily harm on others.
• Smuggling or unlawfully transporting goods across the border (where there is risk of flight, destruction of evidence, or obstruction of law enforcement).

3. Duration of detention:

Under Article 118 of the 2015 Criminal Procedure Code, the maximum period of detention is:

• Not exceeding 03 days from the time the investigating authority or a competent body receives the detainee or issues a decision on detention for persons surrendering/confessing.

Notes:

• If necessary, detention may be extended once for up to 03 days. In special cases, a second extension may be granted for up to 03 days.
• All extensions must be approved by the competent People’s Procuracy. Within 12 hours of receiving the extension request, the Procuracy must decide to approve or disapprove.
• If there is insufficient basis for prosecution during detention, the detainee must be released immediately; if an extension has already been granted, the Procuracy must order immediate release.
• Time spent in detention shall be deducted from the period of temporary custody. One day of detention is counted as one day of custody.

Arrest (pursuant to Articles 109 – 114 of the 2015 Criminal Procedure Code)

The police are permitted to arrest persons in the following cases:

• Arrest in emergency situations;
• Arrest in flagrante delicto;
• Arrest of wanted or absconding persons;
• Arrest of accused or defendants for custody;
• Arrest of persons subject to extradition requests.

1. a) Arrest in emergency situations:

Permissible where sufficient grounds exist to determine that:

• The person is preparing to commit a serious or particularly serious crime, or is an accomplice.
• The victim or a witness identifies the suspect and immediate prevention is required.
• Criminal traces are found on the person, residence, or means of the suspect, and immediate prevention of escape or evidence destruction is required.

Authority to issue arrest warrants includes:
Heads and Deputy Heads of investigative authorities at all levels; commanders of independent units at regimental level; heads of border guard stations; commanders of border checkpoints; provincial Border Guard Commanders; Directors of Border Guard Intelligence and Anti-Narcotics/Crime Departments; special task force commanders; and Coast Guard regional commanders, among others.

b) Arrest in flagrante delicto:

• A person caught in the act of committing a crime.
• A person discovered immediately after committing a crime.
• A person pursued directly after committing a crime, without interruption in time.

Note: In these cases, any individual has the right to apprehend the offender and hand them over to the nearest police authority or People’s Committee.

c) Arrest of wanted or absconding persons:

• Where sufficient grounds exist to confirm the individual is wanted or absconding, and verification and pursuit measures have failed.
• Identity and identifying characteristics must be confirmed.

Both police authorities and private individuals/organizations have the right to apprehend and surrender wanted persons to the nearest police authority or People’s Committee.

Authority to issue wanted notices:
Investigating authorities, or at the request of the Procuracy or Court.

d) Arrest of accused or defendants for custody:

Applicable when:

• An indictment or prosecution decision has been issued, and detention is necessary to prevent flight, obstruction of investigation, repeated offenses, or interference with proceedings.
• To enforce a custodial sentence after a judgment has become legally effective.

Authority to issue arrest warrants for accused/defendants:

• Heads and Deputy Heads of investigative authorities (with Procuracy approval prior to execution).
• Chief Procurators and Deputy Chief Procurators of People’s Procuracies and Military Procuracies at all levels.
• Chief Justices and Deputy Chief Justices of People’s Courts and Military Courts at all levels, and Trial Panels.

e) Arrest for extradition:

• A preventive measure in international criminal proceedings.
• Executed only upon formal or urgent request from a foreign country, pursuant to international treaties, Vietnamese law, or reciprocity principles.
• Relevant authorities: Ministry of Public Security, Procuracy, and Provincial People’s Courts.
• The detainee may only be held for the necessary period to complete extradition procedures. If no formal request is received or the Court denies extradition, the detainee must be released immediately.

Conclusion

Pursuant to the Criminal Procedure Code, the Law on Handling of Administrative Violations, and other relevant legislation, the police are permitted to detain or arrest persons under the circumstances outlined above. Such measures must strictly comply with statutory authority, procedures, and time limits. These provisions serve to prevent and combat crime while safeguarding against unlawful arrest or detention.

To ensure the rights of detainees or arrestees during investigation, it is essential to have legal counsel from the outset. With extensive experience in criminal defense and litigation, An Law Vietnam is available to protect your legal rights against unfounded accusations.