Guidelines for organizing meetings between defense counsel and persons who are held in emergency custody, accused persons in Vietnam

Guidelines for organizing meetings between defense counsel and persons who are held in emergency custody, accused persons in Vietnam (Images from the Internet)

Regarding this issue, LawNet provides the following explanation:

1. Guidelines for organizing meetings between defense counsel and persons who are held in emergency custody, accused persons in Vietnam

According to Article 12 of Circular 46/2019/TT-BCA guiding the organization of meetings between defense counsel and persons who are held in emergency custody, accused persons:

- When the defense counsel requests to meet with persons who are held in emergency custody, accused persons, and has presented a written notice of defense counsel and Lawyer's ID Card, Citizen Identity Card, or Citizen Identity Card, the competent authority handling the case must arrange for the defense counsel to meet with the persons who are held in emergency custody, accused persons at their headquarters, and inform the defense counsel of the regulations of the Investigative Agency's office and request strict compliance from the defense counsel.

When the defense counsel requests to meet with accused persons awaiting trial, the managing authority of the temporary detention or detention facility shall follow the provisions of Article 80 of the Criminal Procedure Code 2015. The managing authority of the temporary detention or detention facility is responsible for informing the competent authority handling the case about the defense counsel's meeting request and assigning a person to coordinate with the detention facility to supervise the meeting if necessary.

- The organization of meetings between defense counsel and accused persons awaiting trial is carried out in accordance with the provisions of Article 10 of Joint Circular 01/2018/TTLT-BCA-BQP-TANDTC-VKSNDTC regarding the coordination relationship between the detention facility and the competent authority conducting the prosecution and the competent prosecutor's office managing and implementing temporary detention.

- The defense counsel may notify the Investigator, the Investigating Officer handling the case in advance about the meeting with persons who are held in emergency custody, detainees, arrested individuals, or individuals in temporary detention. The meeting between the defense counsel and accused persons awaiting trial is conducted during the working hours of the detention facility. The investigative agency and the detention facility shall not restrict the number of meetings or the time of each meeting between the defense counsel and accused persons awaiting trial. The defense counsel must comply with the provisions of the Criminal Procedure Code 2015, the Law on temporary detention and custody 2015, the guiding documents for implementation, and the internal regulations of the detention facility.

2. Regulations on ensuring the presence of defense counsel and defenders of rights and interests during criminal proceedings in Vietnam

According to Article 11 of Circular 46/2019/TT-BCA, the regulations on ensuring the presence of defense counsels and defenders of rights and interests during criminal proceedings are as follows:

- The competent authority handling the case must notify in advance the time and location of the litigation proceedings, allowing the defense counsels and defenders of the rights and legitimate interests of the victim, party, accused person, and person being denounced or recommended for prosecution to participate. The minimum notice period is 24 hours for cases where the defense counsels and defenders of rights and legitimate interests reside in the same province or centrally-run city as the authority handling the case. For cases where they reside in a different province or centrally-run city from the authority handling the case, the notice period is 48 hours before the litigation activities. In cases where the defense counsels and defenders of rights and legitimate interests agree with the Investigator or Investigating Officer on an earlier deadline, the criminal proceedings shall be conducted according to that agreement.

- In cases where the defense counsels have been notified by the competent authority handling the case in advance but fail to appear, the criminal proceedings shall still proceed, except when otherwise stipulated in Article 291 of the Criminal Procedure Code 2015

In cases where the defenders of the rights and legitimate interests of the victim, party, accused person, and person being denounced or recommended for prosecution have been notified in advance but fail to appear, the criminal proceedings shall still proceed.

- When taking statements from persons who are held in emergency custody, accused persons, the Investigator, Investigating Officer, and defense counsels must comply with the provisions of Point b of Clause 1 of Article 73 of the Criminal Procedure Code 2015, the regulations of Temporary Detention Houses, Detention Centers, and other relevant laws. If the defense counsels are found to violate the law, the Investigator or Investigating Officer must immediately cease the process of taking statements, questioning the accused, and make a written record of this violation, reporting it to the Head or Deputy Head of the investigative agency. In cases where the Investigator or Investigating Officer violates the law, the defense counsel has the right to report the violation to the Head or Deputy Head of the investigative agency.

When taking statements from persons who are held in emergency custody, accused persons, if the Investigator agrees to allow the defenders of rights and legitimate interests to ask questions, they must record the questions from the defenders and the answers from the detained persons in the statement record. This also applies to cases involving the accused. After completing the process of taking statements and questioning the accused, the Investigator or Investigating Officer must read or provide the statement record to the defenders for review. After confirming the accuracy of the questions from the defenders and the answers from the detained persons or accused, the Investigator or Investigating Officer requests the defenders to sign the statement record. If the statement record is incomplete or inaccurately reflects the content of the questions and answers, the defenders have the right to request amendments, additions, or provide their opinions before signing the statement record.

- When taking statements from individuals who have been reported or recommended for prosecution, the Investigator, Investigating Officer, and defenders of the rights and legitimate interests of the reported or recommended person must comply with the provisions of Point c Clause 3 Article 8 of the Criminal Procedure Code 2015. If the Investigator or Investigating Officer agrees to allow the defenders to ask questions, they must record the questions from the defenders and the answers from the reported or recommended person in the statement record. After completing the process of taking statements, the Investigator or Investigating Officer must read or provide the statement record to the defenders for review. After confirming the accuracy of the questions from the defenders and the answers from the reported or recommended person, the Investigator or Investigating Officer requests the defenders to sign the statement record. If the statement record is incomplete or inaccurately reflects the content of the questions and answers, the defenders have the right to request amendments, additions, or provide their opinions before signing the statement record.

- When the defense counsels make a request, the Investigator must verify the actual working time of the defense counsels participating in the criminal investigation process during the litigation.

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