To ensure the rights of citizens during the investigation phase of a criminal case, the Code of Criminal Procedure 2015 has stipulated that citizens have the right to invite a lawyer before the investigating agency issues a decision to prosecute the accused.
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According to the current regulations at Criminal Procedure Code 2003, specifically Clause 1, Article 58 stipulates the point in time when the defense counsel participates in the proceedings as follows:
| Article 58. Rights and Obligations of the Defense Counsel 1. The defense counsel participates in the proceedings from the initiation of prosecution against the accused. In cases of arrest as stipulated in Article 81 and Article 82 of this Code, the defense counsel participates in the proceedings from the time a detention decision is made. In cases where it is necessary to keep investigation secrets for crimes infringing upon national security, the Head of the Procuracy decides to allow the defense counsel to participate in the proceedings at the end of the investigation. |
Based on the above regulation, the defense counsel, who is a lawyer, can only participate in defending the rights of the accused from the time the initiation of prosecution decision is made. In cases of arrest for temporary detention or emergency arrest according to Article 81 and Article 82, the lawyer joins the proceedings from the time a detention decision is made.
However, Criminal Procedure Code 2015 which officially took effect from January 01, 2018, stipulates that lawyers can participate in the proceedings even before the initiation of prosecution decision or detention decision, with specific content specified in Article 74 of the Criminal Procedure Code 2015:
| Article 74. Point in Time for Defense Counsel Participation in Proceedings The defense counsel participates in the proceedings from the initiation of prosecution against the accused. In cases of arrest and detention, the defense counsel participates in the proceedings from the time the arrested person is present at the headquarters of the Investigation Agency, the agency tasked with conducting certain investigative activities, or from the time a detention decision is made. In cases where it is necessary to keep investigation secrets for crimes infringing upon national security, the Head of the Procuracy with jurisdiction decides to allow the defense counsel to participate in the proceedings at the end of the investigation. |
even when there is no prosecution initiation decision or detention decision from the investigating agency, the defense counsel, who is a lawyer, is allowed to participate in proceedings from the time the offender is arrested, detained, and brought to the headquarters of the investigating agency.
Therefore, from January 01, 2018, offenders have the right to invite a lawyer to defend them before there is a prosecution initiation decision or detention decision from the investigating agency. At the same time, offenders have the full right to provide their testimony only with the participation of a defense lawyer.
