Guidance for Arrested and Detained Persons to Exercise the Right to Counsel

When receiving a person arrested in the act of committing a crime or under a wanted notice (hereinafter referred to as the arrested person), delivering the Emergency Detention Order to the emergency detainee, the Temporary Detention Decision to the temporarily detained person, the Prosecution Decision to the accused, the person executing the order or decision, and the receiver of the arrested person must read and clearly explain their rights and obligations as prescribed in the Criminal Procedure Code of 2015 and record this in the handover minutes. The minutes must clearly record the opinions of the emergency detainee, the arrested person, the temporarily detained person, and the accused about whether they request a defense attorney and whether they request notification to their representative or next of kin so that the competent authority can implement the provisions of the Criminal Procedure Code of 2015 related to their representative or next of kin.

Illustration (source: internet)

The implementation of the right to request a defense attorney for the arrested person, temporarily detained person, and accused person under temporary detention is carried out according to Circular 46/2019/TT-BCA as follows:

- In cases where the arrested person, temporarily detained person, or accused person under temporary detention requests a defense attorney, the investigation agency or detention facility managing the arrested person, temporarily detained person, or accused person under temporary detention shall implement it as prescribed in Clause 2, Article 75 of the Criminal Procedure Code of 2015. The detention facility is responsible for notifying the investigating agency handling the case. The request for a defense attorney from the managing entity of the arrested person, temporarily detained person, or accused person under temporary detention is sent directly to this agency's headquarters or via postal mail. If sent directly to this managing entity's headquarters, it must be signed for in the communication and document receipt log.- In cases where the arrested person, temporarily detained person, or accused person under temporary detention has not requested a defense attorney, during the first interrogation of the arrested person, temporarily detained person, or the first questioning of the accused, the Investigator or Investigation Officer must explicitly ask if the arrested person, temporarily detained person, or accused wishes to request a defense attorney and record their opinion in the minutes. If they request a defense attorney, the Investigator or Investigation Officer shall guide them in writing the request and proceed according to the instructions above. If they do not request a defense attorney, within 12 hours after taking the statement of the arrested or detained person, or within 24 hours from the first questioning of the accused, the Investigator or Investigation Officer who conducted the interrogation or questioning is responsible for notifying the representative or next of kin of the arrested person, temporarily detained person, or accused person under temporary detention.

See the full text of the regulation at Circular 46/2019/TT-BCA effective from December 2, 2019.

Thu Ba

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE