Bail as a preventive measure in criminal proceedings

In criminal proceedings, preventive measures are applied by competent procedural authorities and persons conducting legal proceedings in order to promptly prevent criminal offences, ensure the effective conduct of investigation, prosecution, adjudication and enforcement of criminal judgments. Preventive measures include: holding a person in urgent circumstances, arrest, temporary detention, detention pending trial, bail, deposit as security, prohibition from leaving the place of residence, and temporary exit suspension.

Among these measures, bail is a preventive measure that serves as an alternative to detention pending trial. It is less restrictive in nature, contributes to limiting the application of deprivation of personal liberty where unnecessary, and reflects the humanitarian and progressive principles of criminal procedure law.

1. Definition and Legal Basis

Pursuant to Article 121 of the Criminal Procedure Code 2015, bail is a preventive measure applied in lieu of detention pending trial, based on the nature and degree of danger posed to society by the alleged offence as well as the personal background of the accused or defendant. Within their respective powers, the Investigation Authority, the Procuracy and the Court may decide to grant bail to an accused or defendant where detention pending trial is considered unnecessary.

2. Conditions for Application

• – First, having regard to the nature and degree of danger posed to society by the alleged offence and the personal background of the accused or defendant, it is unnecessary to isolate such person from society;
• – Second, there are sufficient grounds to determine that the accused or defendant will neither abscond, continue committing offences, nor obstruct investigation, prosecution, adjudication or enforcement of the judgment;
• – Third, there is an individual, agency or organisation that satisfies the statutory conditions to act as guarantor for the bail.

3. Guarantors

a) Individual Guarantors

An individual acting as guarantor must satisfy the following conditions:

• – Be at least 18 years of age;
• – Have good moral character and comply strictly with the law;
• – Have stable income and the ability to supervise the person released on bail;
• – Be a relative of the accused or defendant;
• – Have at least two individuals jointly acting as guarantors.

The individual guarantors must execute a written undertaking certified by the People’s Committee of the commune, ward or township where they reside or by the agency or organisation where they work or study.

b) Institutional Guarantors

An agency or organisation may only provide bail for a person belonging to its organisation and must issue a written undertaking certified by its head confirming its responsibility to supervise and manage the person released on bail.

4. Obligations of the Person Released on Bail

The accused or defendant released on bail must execute a written undertaking to comply with the following obligations:

• – To appear in accordance with summonses, except where prevented by force majeure events or objective impediments;
• – Not to abscond or continue committing offences;
• – Not to bribe, coerce or incite others to make false statements or provide false evidence;
• – Not to destroy or falsify evidence, documents or exhibits relating to the case, or dissipate assets connected with the case;
• – Not to threaten, intimidate or retaliate against witnesses, victims, crime reporters or their relatives.

Where the accused or defendant breaches any of the above undertakings, he or she shall be placed in detention pending trial.

5. Competent Authorities and Duration of Application

The authority to decide on the application of bail rests with the Investigation Authority, the Procuracy and the Court in accordance with the provisions of the Criminal Procedure Code. In certain cases, such decision must be approved by the Procuracy of the same level before it is issued.

The duration of bail shall not exceed the statutory time limits applicable to investigation, prosecution or adjudication under the Criminal Procedure Code. In respect of a person sentenced to imprisonment, the bail period shall not exceed the period from the pronouncement of the judgment until the person commences serving the custodial sentence.

6. Responsibilities of the Guarantor

The agency, organisation or individual acting as guarantor shall be responsible for supervising and ensuring that the person released on bail complies with all obligations undertaken.

Where the person released on bail breaches such obligations, the guarantor may, depending on the nature and severity of the violation, be subject to an administrative monetary penalty in accordance with law.

7. Practical Application and Certain Difficulties

In practice, the application of bail continues to reveal several shortcomings, including:

• – The statutory conditions for application remain insufficiently specific and detailed, resulting in inconsistent interpretation and application;
• – The responsibilities of agencies and organisations acting as guarantors have not been comprehensively regulated;
• – The legal consequences of breaching bail undertakings have not been clearly guided, thereby affecting the effectiveness of this preventive measure.

8. Conclusion

Bail is a humanitarian preventive measure that helps strike a balance between the objective of combating crime and the protection of human rights in criminal proceedings. Nevertheless, in order to ensure its effective application, it is necessary to continue improving the legal framework and strengthening consistent guidance on its application in practice.

Should you require further legal advice or assistance, please contact:

Legal Counsel: Pham Anh Hung

• – Email: hung.pham@bizlawyer.vn
• – Telephone: 086 888 1900

Yours sincerely.