Procedure for Handling Requests for Legal Defense by Representatives of Detainees

Article 4 of Circular 46/2019/TT-BCA guides the People's Public Security force in receiving and handling requests for defense counsel from the representative or relative of a person held in an emergency situation, person arrested, person detained, or defendant being temporarily detained. Specifically:

Illustrative image (source: internet)

Step 1: The investigating agency handling the case, Temporary Detention Center, or Detention Camp managing the person held in an emergency situation, person arrested, person detained, or defendant being temporarily detained, is responsible for receiving the request for defense counsel from the representative or relative of the person held in an emergency situation, person arrested, person detained, or defendant being temporarily detained, along with documents proving their relationship to the person held in an emergency situation, person arrested, person detained, or defendant being temporarily detained. The reception of the request is carried out at the location of the criminal duty shift of the Investigating Agency or the on-duty location of the Temporary Detention Center or Detention Camp.

Step 2: Immediately after receiving the request for a defense counsel from the representative or relative of the person held in an emergency situation, person arrested, person detained, or defendant being temporarily detained, the Investigating agency, Temporary Detention Center, or Detention Camp is responsible for stamping the incoming document, noting the hour, day, month, and year received and must notify the person held in an emergency situation, person arrested, person detained, or defendant being temporarily detained to get their opinion on the request for defense counsel.

Step 3: After receiving the notification of the request for defense counsel, if the person held in an emergency situation, person arrested, person detained, or defendant being temporarily detained agrees to request a defense counsel, the procedures stipulated in Article 3 of this Circular shall be followed. In case they refuse the defense counsel request, the agency managing the person held in an emergency situation, person arrested, person detained, or defendant being temporarily detained must draft a record of the refusal and handle as follows:

- For persons held in emergency situations or persons arrested at the Investigating Agency headquarters: Within no more than 12 hours from drafting the record, the Investigating Agency is responsible for notifying the defense counsel requested by the representative or relative of the person held in an emergency situation or arrested, and the Investigator or Investigative Officer must agree on a time with the defense counsel for a direct meeting with the person held in an emergency situation or arrested to confirm the refusal, and a record must be made. In cases where the person held in an emergency situation or arrested has already been issued a detention decision by the competent authority, the Investigator or Investigative Officer must still notify and agree on a time with the defense counsel to meet the person held in an emergency situation or arrested already under a detention decision.

- For persons detained or defendants being temporarily detained: Within no more than 24 hours from drafting the record, the Investigating Agency, Temporary Detention Center, or Detention Camp is responsible for notifying and attaching the record to the defense counsel, the representative, or relative of the person detained or defendant being temporarily detained, informing the Investigating Agency handling the case, if the record is drafted by the Temporary Detention Center or Detention Camp. The Investigator or Investigative Officer must agree on a time with the defense counsel to directly meet the person detained or defendant being temporarily detained to confirm the refusal, and a record must be drafted.

+ In cases where the detained person is prosecuted and has a temporary detention order from the competent authority, the Investigator or Investigative Officer must still agree on a time with the defense counsel to meet the detained person who has a temporary detention order.

+ In cases where the detained person is prosecuted but no temporary detention measure is applied, ensuring the right to defense counsel is executed according to the provisions in Clause 3, Article 3 of this Circular.

+ In cases where the detained person is released, if still having status to participate in proceedings with the right to request defense counsel, the procedures for defense counsel registration will still be carried out; if not in a position with the right to defense counsel, the defense counsel registration procedures are halted.

See more regulations at Circular 46/2019/TT-BCA effective from December 2, 2019.

Thu Ba

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