From what stage does the defense counsel engage in legal proceedings? Who is entitled to request the replacement of defense counsels in Vietnam?
Who are defense counsels in Vietnam?
Pursuant to Article 72 of the 2015 Criminal Procedure Code of Vietnam stipulating as follows:
Defense counsels
1. Defense counsels are enabled by persons facing charges or appointed by competent procedural authorities to perform activities of pleading, the registration of which has been approved by competent procedural authorities and persons.
2. Defense counsels may be:
a) Lawyers;
b) Representatives of persons facing charges;
c) People’s advocates;
d) Legal assistants for charged persons given legal aid.
3. People’s advocates are Vietnamese citizens from 18 years of age, pledging allegiance to the Nation, possessing good moral quality, having legal knowledge and sound health to fulfill assignments. Such advocates are assigned by the Committee or affiliations of the Vietnam Fatherland Front to defend their personnel facing charges.
4. The following individuals cannot plead:
a) Having engaged in legal proceedings of the lawsuit; or being kindred of persons having engaged in legal procedure of the lawsuit;
b) Having attended the lawsuit as witness testifiers, expert witnesses, valuators, translators, interpreters;
c) Persons sentenced with criminal records sustained, facing criminal prosecution, or sent to mandatory rehabilitation or education centers through administrative measures.
5. A defense counsel may defend various persons facing charges in one lawsuit if such persons' rights and benefits do not come into collision.
Various defense counsels may defend one person facing charges.
Thus, defense counsels may be:
- Lawyers;
- Representatives of persons facing charges;
- People’s advocates;
- Legal assistants for charged persons given legal aid.
Note: The defense counsels must meet the conditions prescribed by law and not fall into the category of not being able to plead under the above provisions.
From what stage does the defense counsel engage in legal proceedings? Who is entitled to request the replacement of defense counsels in Vietnam?
From what stage does the defense counsel engage in legal proceedings?
Pursuant to Article 74 of the 2015 Criminal Procedure Code of Vietnam stipulating as follows:
Time of defense counsels' participation in legal proceedings
Defense counsels engage in legal proceedings upon the prosecution of suspects.
Defense counsels for arrestees and temporary detainees engage in legal proceedings upon the arrestees’ appearance in an office of investigation authorities or units assigned to carry out certain activities of investigation or upon the release of a decision on temporary detainment.
The head of the Procuracy is authorized, when confidentiality of investigations into national security breach is vital, to sanction defense counsels' engagement in legal proceedings after investigations end.
According to the above provisions, defense counsels engage in legal proceedings upon the prosecution of suspects.
However, defense counsels for arrestees and temporary detainees engage in legal proceedings upon the arrestees’ appearance in an office of investigation authorities or units assigned to carry out certain activities of investigation or upon the release of a decision on temporary detainment.
The head of the Procuracy is authorized, when confidentiality of investigations into national security breach is vital, to sanction defense counsels' engagement in legal proceedings after investigations end.
Who is entitled to request the replacement of defense counsels in Vietnam?
Pursuant to Article 77 of the 2015 Criminal Procedure Code of Vietnam stipulating replacement or rejection of defense counsels as follows:
Replacement or rejection of defense counsels
1. The following persons are entitled to reject or request the replacement of defense counsels:
a) Persons facing charges;
b) Representatives of persons facing charges;
c) Kin of persons facing charges.
All rejections or replacements of defense counsels must be approved by persons facing charges, executed in writing and inputted in case files, unless otherwise stated in Point b, Section 1, Article 76 of this Law.
2. If kin of arrestees, temporary detainees or persons in detention reject defense counsel(s) during the stage of investigation, the investigator and such defense counsel(s) shall directly meet the person in custody to confirm the rejection.
3. If a defense counsel is appointed according to Point 1, Article 76 of this Law, the accused person and his representative or kin shall preserve the right to petition for the replacement or rejection of such defense counsel.
If a defense counsel is replaced, a new defense counsel shall be appointed according to Point 2, Article 76 of this Law.
If a defense counsel is rejected, competent procedural authorities shall record in writing such rejection by accused persons or their representatives or kindred according to Point b, Section 1, Article 76 of this Law, shall terminate the appointment of defense counsels.
Thus, the following persons are entitled to reject or request the replacement of defense counsels:
- Persons facing charges;
- Representatives of persons facing charges;
- Kin of persons facing charges.
On the other hand, all rejections or replacements of defense counsels must be approved by persons facing charges, executed in writing and inputted in case files, unless otherwise stated in Point b, Section 1, Article 76 of the 2015 Criminal Procedure Code of Vietnam.
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