Regulations on ensuring the presence of defense counsels during activities of legal proceedings in Vietnam

Regulations on ensuring the presence of defense counsels during activities of legal proceedings in Vietnam​ (Image from the Internet)

1. Regulations on ensuring the presence of defense counsels during activities of legal proceedings in Vietnam

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

- The agency handling the case must notify in advance about the time and place of the activities of legal proceedings in which the defense counsels and the protector of rights and legitimate interests of victims, involved parties, denounced persons, and persons subject to prosecution requests have the right to participate. The notice period must be at least 24 hours for those residing in the same province or centrally run city as the agency handling the case, and 48 hours for those residing in different provinces or centrally run cities, before the day of the procedural activity. If the defense counsels and the protector of rights and legitimate interests agree with the Investigator or Investigation Officer on a shorter period, the activities of legal proceedings can proceed according to that agreement.

- If the counsel, having been duly notified by the agency handling the case, fails to appear, the procedural activity shall still proceed, except as provided in Article 291 of the Criminal Procedure Code 2015.

If the protector of rights and legitimate interests of the victim, involved party, denounced person, or person subject to prosecution requests has been notified but fails to appear, the procedural activity shall still proceed.

- When taking statements from persons detained in an emergency, arrested persons, temporarily held persons, and interrogating suspects, the Investigator, Investigation Officer, and defense counsels must comply with point b, clause 1, Article 73 of the Criminal Procedure Code 2015, the rules of the detention center, temporary detention facility, and other relevant legal provisions.

If a legal violation by the counsel is detected, the Investigator or Investigation Officer must immediately cease taking statements or interrogating the suspect and make a record of the incident, reporting it to the Head or Deputy Head of the investigating body for handling. If the Investigator or Investigation Officer violates the law, the counsel has the right to report the violation to the Head or Deputy Head of the investigating body.

When taking statements from persons detained in an emergency, arrested persons, temporarily held persons, or interrogating suspects, if the Investigator agrees for the counsel to ask questions, the questions and corresponding answers must be recorded in the statement. Upon completion, the Investigator must read back, or allow the counsel to read back, the statement or interrogation record.

After verifying the correctness of the counsel's questions and the answers of the detained, arrested, or temporarily held persons or suspects, the Investigator or Investigation Officer shall require the counsel to sign the record. If the record does not fully or accurately capture the questions and answers, the counsel has the right to request amendments or additions or to add comments before signing.

- When taking statements from denounced persons or persons subject to prosecution requests, the Investigator, Investigation Officer, and protector of rights and legitimate interests of these persons must follow point c, clause 3, Article 83 of the Criminal Procedure Code 2015. If the Investigator or Investigation Officer allows the protector to ask questions, these questions and respective answers must be recorded in the statement. Upon completion, the Investigator must read back, or allow the protector to read back, the statement. After verifying the correctness of the protector's questions and the answers of the denounced persons or persons subject to prosecution requests, the Investigator or Investigation Officer shall require the protector to sign the record. If the record does not fully or accurately capture the questions and answers, the protector has the right to request amendments or additions or to add comments before signing.

- When a defense counsels requests, the Investigator must confirm the actual working hours of the counsel's participation in the criminal case investigation process.

2. Responsibility for Ensuring the Rights to Collect, Present Evidence, Documents, and Objects of defense counsels in Vietnam

The responsibility for ensuring the rights to collect, present evidence, documents, and objects of defense counsels in Vietnam according to Article 15 of Circular 46/2019/TT-BCA is as follows:

- When defense counsels collects, presents evidence, documents, and objects related to the defense, and the protector of rights and legitimate interests of the victim, involved party, denounced person, or person subject to prosecution requests presents evidence, documents, and objects to the agency handling the case, the Investigator or Investigation Officer must make a reception record and include it in the case file.

If the counsel is found to have collected confidential state, work-related materials, or disclosed investigation secrets, depending on the nature and severity of the violation, the handling agency must remind the counsel, and if the violation is serious, take measures within their authority or report to the competent authority for handling according to the law.

- If the defense counsels or the protector of rights and legitimate interests of the victim, involved party, denounced person, or person subject to prosecution requests makes a request, and if the request is related to the defense or the case resolution, the Investigator or Investigation Officer must make a record acknowledging the request.

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