>> Police continue to detain “bribing” journalist
>> “Bribing journalist” case should be suspended: lawyer
>> Anti-corruption journalist Hoang Khuong arrested
Under Article 79 of the Criminal Procedure Code, preventive measures, including temporary detention, are applied only for cases in which “there are grounds proving that the accused or defendants would cause difficulties to the investigation, prosecution or adjudication, or they would continue committing offenses, as well as when it is necessary to secure the judgment execution,” the lawyer said.
Meanwhile, Article 88 of the same Code states that “temporary detention may apply to the accused or defendants” in two cases, including when “the accused or defendants have committed especially serious offenses”
The word “may” in this article is very vague, Tai said.
Such an article can lead to an understanding that temporary detention is a measure that is essentially applied to those who have committed especially serious offenses, without necessarily meeting conditions specified in Article 79.
In other words, a person can be temporarily detained under Article 88, although such a detention is not the purpose of Article 79, Tai said.
Article 88, however, can give rise to a violation of the principle of presumption of innocence, under which all individuals have the right to be presumed innocent until all evidence of their guilt is presented in a public trial to a court, with all the necessary guarantees for the rights of the defense.
Similar to this principle, Article 72 of the Constitution says, “No citizen shall be considered guilty and liable to punishment until a verdict has been reached by the Court and has come into effect.”
Article 9 of the Criminal Procedure Code stipulates the same, “No person shall be considered guilty and be punished until a court judgment on his/her criminality takes legal effect.”
Therefore, when a court judgment is not yet reached, on what grounds can the investigation agency determine that a suspect has committed a crime?, the lawyer wonders.
He pointed out that Article 88 has granted proceeding agencies the right to the presumption of guilt on which they base the temporary detention of suspects. In fact, there have been cases in which temporary detention caused harm and damage to many suspects who, after being detained, were charged with slighter crimes or were declared innocent, he said.
Journalist Hoang Khuong (L) being questioned at the investigation agency (Photo: Phap Luat TP.HCM)
“In my opinion, temporary detention should be applied only when there is an actual need for preventive measures, as stated in Article 79 of the Criminal Procedure Code.
“On the other hand, temporary detention is one of the ways to restrict a person’s right to freedom, so it is necessary to be prudent in applying it to anyone.
“One day in prison can be felt as if it is as long as thousands of years at large!”
As previously reported, 37-year-old Nguyen Van Khuong, whose pen name is Hoang Khuong, was arrested and prosecuted on January 2, 2012 for allegedly bribing Senior Lieutenant Huynh Minh Duc, a former police officer in HCMC’s Binh Thanh District Police force in June 2011.
Khuong has since been detained for four months and his original term of detention ended on May 2, but police said the journalist would be held for three more months for further investigation.
Last week Phan Trung Hoai, Khuong’s defense attorney, said he had issued a proposal to the proceeding agencies asking that they release Khuong on bail for health reasons.
On March 20 Hoai sent another proposal to the police, requesting that the investigation be suspended since the reporter had not committed a criminal offense. However, Hoai has received no feedback from the concerned agencies regarding either of his requests.
“The arrest and prosecution of Khuong was not based on sufficient judicial grounds,” Hoai said.