English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
ent, only persons expressly authorized by the examinee shall be allowed in the room
where the examination is being conducted.
Custody
Articles 86 and 87 of the Criminal Procedure Code provide that a person can only be held in
custody for a maximum period of three days. This applies to persons arrested in urgent cases
or through a pursuit warrant, caught ‘red-handed’, or who have confessed or surrendered.
Within 12 hours from the issuance of a custody decision, the decision must be sent to the
procuracy to determine whether the custody is necessary or with basis. 173
Recommendation: It is recommended that, in the case of pregnant women or
those requiring special assistance (for example, suffering a serious illness), the period
for custody in Articles 86 and 87 of the Criminal Procedure Code be shortened; for
example, shortening the time for sending the custody decisions to the procuracy, or the
maximum time that they are held in custody. These cases should be provided priority
in the determination of the lawfulness of their custody.
Temporary detention
Article 88 of the Criminal Procedure Code states that where the accused or defendants are
women who are pregnant or nursing children aged less than 36 months and having clear residences,
they cannot be detained. Instead, other deterrent measures will be applied, except
where the accused or defendants: (a) escaped but then were arrested under pursuit warrants;
(b) were already subjected to other deterrent measures, but then continued committing
offences or intentionally seriously obstructing the investigation, prosecution or adjudication; or
(c) committed offences of infringing upon national security and there are sufficient grounds to
believe that, if they are not detained, they will be detrimental to national security.
This provision shows strong intent of the State to protect maternity as well as to show
consideration for the well-being of newborn babies. Non-custodial measures will enable pregnant
women and nursing mothers to access proper health-care services for before, during and
after their pregnancy, as well as to ensure the health and care of the foetus or newborn baby.
Penalties
There are several provisions on criminal procedure pertaining to pregnant women and women
who are nursing children aged up to 36 months and applicable penalties to them.
Non-execution of the death penalty
Article 35 of the Penal Code states that the “[d]eath penalty shall not apply to … pregnant
women and women nursing children up to 36 months old at the time of committing crimes or
being tried.” It further provides that the death penalty will be converted into life imprisonment.
89
Reaffirming this, Article 259 of Criminal Procedure Code provides: “Where the convicts
are women, before issuing decisions to execute the judgments, the presidents of the courts
173
Ibid., Article 86(3)
General undertakings to eliminate discrimination and ensure equality (Articles 1-3 of CEDAW)