1. Introduction. – 2. Approach and Research Methodology. – 3. Restriction of Human Rights in International Law. – 3.1. The Accused and the Rights of the Accused. – 3.2. International Principles and Standards on Restricting the Rights of the Accused. – 3.2.1 The Principle of Legality. – 3.2.2 The Principles of Necessity. – 3.2.3 The Principle of Proportionality – 3.2.4 European Debates on Rights-Limitation Principles. – 4. Assessment of the Compatibility of Vietnamese Law with International Standards on Restricting the Rights of the Accused. – 4.1 Vietnam’s Political-Legal Context. – 4.2. Assessment of Vietnam’s Legal Framework on Restrictions of the Rights of the Accused. – 4.2.1 Legality. – 4.2.2 Legitimate Aim in Vietnam’s Arrest and Pre-Trial Detention Regime. – 4.2.3 Necessity in Vietnam’s Arrest and Pre-Trial Detention Regime. – 4.2.4 A Cumulative Assessment of Proportionality. – 5. Conclusion and Recommendations.
Background: This article examines the human rights limitations imposed on suspects and accused persons in criminal proceedings in Vietnam. The focus is on pre-trial practice. This stage concentrates on the most intrusive measures. It directly affects liberty, privacy, and defence rights. The article uses European standards as the main benchmark. It draws on the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR). The core test is familiar: measures must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society. Necessity is read together with proportionality and robust safeguards against arbitrariness. Against these standards, the article poses a single guiding question: How do Vietnamese criminal-procedure law and practice design, apply, and justify limitations on the rights of suspects and accused persons, and what gaps remain when such limitations are assessed against European requirements of legality, necessity, proportionality, and safeguards against arbitrariness? The study is situated in Vietnam’s commitment to building a rule-of-law state, advancing judicial reform, and strengthening the protection of human rights in line with the international obligations to which it has acceded.
Method: The study combines doctrinal and functional-comparative analysis with a practice-facing assessment. It first reconstructs the European rights-limitation framework under the ECHR and ECtHR case law (legality, legitimate aim, necessity, proportionality, and safeguards against arbitrariness). It then analyses Vietnam’s constitutional and criminal procedure rules on coercive and investigative measures restricting liberty, privacy, and defence rights, and contrasts their operationalisation, judicial authorisation, structured reasoning, time limits, and remedies with recurring patterns in Vietnamese practice.
Results and Conclusions: The study finds partial convergence between Vietnam’s framework and European human rights standards, but also persistent gaps. Normatively, Vietnamese criminal procedure does not consistently operationalise a structured test of legality, necessity, and proportionality for coercive measures. In practice, pre-trial decision making remains strongly detention-oriented, with limited use of less restrictive options and uneven case specific-reasoning. Institutionally, independent judicial scrutiny at the investigative stage is relatively weak, and key safeguards emphasised in European jurisprudence, such as early access to defence, meaningful review, and effective remedies, are not always robust.
The article concludes that closer alignment is feasible if Vietnam shifts toward a criteria-based limitations model. This requires codified necessity and proportionality tests, stronger and more intrusive measures of sensitive judicial control, structured reasoning, prioritisation of options other than detention, and enforceable consequences for unlawful restrictions.