On the Time of Arising of the Rights of the Defender

On November 27, 2015, the National Assembly passed the 2015 Criminal Procedure Code, stipulating that other people also have the right to defense. Defenders can be: Lawyers; Representatives of the accused; People's defenders; Legal aid workers.

Compared to the 2003 Criminal Procedure Code, the 2015 Criminal Procedure Code stipulates that the Representative of the accused has a broader concept than the Legal Representative of the suspect or defendant; adds that the defense attorney can be a Legal Assistant in addition to the Lawyer and People's Defender; and adds regulations on People's Defender to determine the subject, which is a Vietnamese citizen aged 18 or older, loyal to the country, with legal knowledge, and good health to ensure the completion of assigned tasks.

2.1.1.2. On the time when the rights of the defender arise

The time when the defender's rights arise is the time when the defender is allowed to participate in criminal proceedings. This is the time when the Law on Criminal Procedure stipulates that Lawyers, People's Defenders, Representatives of the accused , People's Defenders, and Legal Aid Workers are allowed to participate in proceedings with the legal capacity and status of "Defenders" to carry out defense activities for the accused .

2.1.2. Current status of regulations on the rights of defense counsel The rights of defense counsel include two basic groups of rights:

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Group 1: The right that the defender is allowed to exercise to represent the rights of the accused (right of representation)

Include:

- The right to be informed of the time and place of taking statements of arrested or detained persons during interrogation and re-examination of defendants.

The right to view the minutes of the proceedings in which he/she participated and the procedural decisions related to the person he/she defends;

Proposal to change the competent person for administrative judgment enforcement, appraiser, property valuer, interpreter, translator; proposal to change or cancel preventive measures or coercive measures;

Complaints about decisions and procedural actions of competent authorities and individuals

conduct proceedings.

- Request to conduct procedural activities according to the provisions of the Criminal Procedure Code; request to summon witnesses, other participants in the proceedings, and persons with authority to conduct the proceedings;

Group 2: Exclusive rights of the defense attorney (independent of the rights of the accused)

- The right to meet and question the accused (arrested person, suspect, defendant)

- The right to be present when taking statements of arrested or detained persons during interrogation of suspects and re-examination of defendants.

- The right to collect, present evidence, documents, objects, and requests.

- The right to present opinions on evidence and use of evidence; request competent authorities to conduct proceedings to examine and evaluate; request competent authorities to conduct proceedings to collect evidence; request additional appraisal, re-appraisal, and asset valuation.

- Duties of the defense attorney:

The rights of the defense attorney are inseparable from the obligations of the NBC:

- NBC has the obligation to assist the accused in legal matters to protect their legitimate rights and interests;

- Other obligations include: the defender must not disclose investigative secrets that he/she knows when performing the defense, must not use recorded or copied documents in the case file for the purpose of infringing upon the interests of the State, the rights and legitimate interests of agencies, organizations and individuals. The law also stipulates that the defender must respect the truth and the law, must not bribe, coerce or incite others to make false statements or provide false documents. If the defender violates the law, depending on the nature and severity of the violation, he/she may be subject to disciplinary action, administrative sanctions or criminal prosecution. If damage is caused, he/she must compensate according to the provisions of the law.

In the two groups of rights of the defender mentioned above, group 2 is a group of rights specific to the defender, independent of the rights of the accused. It is this group of rights that makes up the characteristics of the right to defense.

Group 1 of rights (is the group of rights representing the rights of the accused), meaning that the accused enjoys these rights and the NBC also has those rights (for example: The right to view the minutes of the proceedings, the right to view the minutes of the proceedings, etc.) to be facilitated with information to ensure the exercise of the right to defense (a specific right in group 2).

Therefore, in the analysis part of the thesis, the author will give priority to analyzing the current status of regulations on the group of special defense rights (group 2) and only summarize the contents of the group of representative rights (group 1).

* For the group of special defense rights (group 2), including the following specific rights:

2.1.2.1. The right to meet and question the accused (arrested person, suspect, defendant)

The right of the NBC to meet, contact, and work privately with the accused originates from and is directly related to the Constitutional right allowing the accused to have a lawyer or other person defend him/her. This is also the basis for the NBC to carry out its defense activities. The purpose of the right to meet and question the accused is to learn about the case, verify information and documents, assess the physical and mental condition and needs of the accused and collect evidence to serve the defense activities.

First of all, it is necessary to affirm that according to the content of this law, the NBC has the right to proactively meet and question the accused, at any stage of the proceedings, without any limit on the number of times or time of meetings; to ask and discuss completely privately with the accused under the supervision conditions prescribed by the detention facility without the mandatory presence of the NTHTT. This affirmation is also demonstrated through the provisions of the relevant law as follows:

The 2015 Law on Detention and Temporary Detention stipulates: “ Defense attorneys are allowed to meet detainees and prisoners to conduct defense in accordance with the provisions of the Criminal Procedure Code and this Law at the working room of the detention facility or where the detainee or prisoner is undergoing medical examination or treatment… ”. Thus, the 2015 Criminal Procedure Code and the 2015 Law on Detention and Temporary Detention both affirm that NBC has

The right to meet with detainees, people in temporary detention, and defendants to carry out their defense. This is a private meeting between NBC and the accused who is being detained or imprisoned. This new regulation is completely different from NBC being present when taking statements from arrestees, people in temporary detention, or when the investigation agency questions the accused.

On January 23, 2018, the Minister of Public Security, the Minister of National Defense, the Chief Justice of the Supreme People's Court and the Chief Prosecutor of the Supreme People's Procuracy issued Joint Circular No. 01/2018/TTLT-BCA-BQP-TANDTC - VKSNDTC regulating the coordination relationship between detention facilities and competent agencies and competent People's Procuracies to supervise the management and enforcement of temporary detention and temporary imprisonment. Accordingly, the coordination in resolving the issue of temporary detention and temporary imprisonment for detainees and temporary imprisonment victims is implemented in accordance with the provisions of Article 80 of the 2015 Criminal Procedure Code and Articles 22 and 23 of the Law on Temporary Detention and Temporary Imprisonment. Upon receiving the written notice of temporary detention and temporary imprisonment for detainees and temporary imprisonment victims from the agency handling the case, the detention facility shall organize for the detention facility to meet the detainees and temporary imprisonment victims in accordance with the provisions of law. In case it is necessary to supervise the meeting, the Head or competent person of the agency handling the case shall coordinate with the detention facility to organize the supervision. If the detainee, the person in temporary detention, or the NBC violates the regulations of the detention facility or obstructs the settlement of the case, the competent person supervising must immediately stop the meeting, make a record, report to the head of the detention facility, and notify in writing the agency handling the case for handling. This Joint Circular takes effect from March 12, 2018.

Article 80 of the 2015 Criminal Procedure Code stipulates that in order to meet with an arrested person, a detainee, a suspect or defendant in temporary detention, the NBC must present a written NBC notification, a lawyer card, a legal assistant card, an identity card or a citizen identification card. However, because the Detention Center and Temporary Detention Camp are under the management of the Ministry of Public Security, the notification is very important between the investigation agency and the detention facility supervisor. This is the minimum condition to ensure that when the NBC is present at the detention facility to register to meet and work with the arrested person, the detainee, the suspect or defendant, he or she will be given the most favorable conditions without any restrictions.

In order to ensure the good performance of its tasks, as well as to create opportunities

coordination mechanism between the investigation agencies in the process of handling criminal cases according to the provisions of the 2015 Criminal Procedure Code. On October 10, 2019, the Ministry of Public Security issued Circular 46/2019/TT-BCA stipulating the responsibilities of the People's Public Security force in implementing the provisions of the 2015 Criminal Procedure Code related to ensuring the right to defense of detainees in emergency cases, persons arrested in cases of flagrante delicto or under a wanted decision, persons in temporary detention, and defendants; protecting the legitimate rights and interests of victims, litigants, denounced persons, and persons recommended for prosecution. According to the provisions of this Circular, when the NBC requests to meet the client, has presented the NBC notification document and the lawyer's card, identity card or citizen identification card, the agency in charge must arrange for the NBC to meet, at the same time inform the NBC of the regulations of the investigation agency's headquarters and request strict compliance. When the NBC requests to meet with a detainee or defendant in temporary detention, the agency managing the detainee or defendant in temporary detention is responsible for notifying the agency handling the case of the NBC's meeting to send someone to coordinate with the detention facility to monitor the meeting if deemed necessary. In particular, the NBC may notify the investigator handling the case in advance of the meeting with the client. The investigation agency or detention facility shall not limit the number of times and duration of a NBC meeting with a detainee or defendant in temporary detention.

The 2015 Criminal Procedure Code, the 2015 Law on Detention and Temporary Imprisonment, Joint Circular No. 01/2018/TTLT-BCA-BQP-TANDTC-VKSNDTC dated January 23, 2018, and Circular 46/2019/TT-BCA dated October 10, 2019 all affirm the natural and proactive right of the NBC to meet with people detained or imprisoned during the investigation phase, except in cases where it is necessary to keep the investigation secret in cases of national security violations as prescribed in Article 74 of the 2015 Criminal Procedure Code. All of the above regulations do not mention or stipulate that the NBC meeting with people detained or imprisoned during the investigation phase must be in the presence of an investigator or must have prior approval from the investigation agency. Thus, legally, the NBC's proactive private meeting and working with the detainee or prisoner requires the detention facility to resolve the NBC's meeting request. In case of necessity according to regulations, the agency handling the case must be notified.

The judge must send someone to participate in the supervision, and cannot use the reason that the investigation agency does not agree or the investigator is busy and cannot attend to refuse NBC's request to meet the person being detained or imprisoned.

The meaning and nature of the above provisions have removed barriers to restrict NBC's rights, and if these rights are not respected, it must be determined that this is a serious violation of procedural law.

2.1.2.2. The right to be present when taking statements of arrested or detained persons during interrogation of suspects and re-examination of defendants.

The purpose of the regulation requiring the presence of the NBC when taking statements from arrested or detained persons during interrogation and re-examination of the accused during the activities of taking statements and interrogation is to help detainees, people in temporary detention, and accused persons to be more stable psychologically, and at the same time, the NBCs are also more cautious in complying with the law, avoiding cases of prompting, forcing, using torture or other violations of procedural law. On the other hand, the presence of the NBC during the activities of taking statements, interrogation, and re-examination increases objectivity and persuasiveness. The investigating agencies need to acknowledge that the NBC contributes to protecting the socialist legal system and is not the one who causes difficulties for the investigation, prosecution, and trial. The NBC present during the taking statements and interrogation also has the right to ask questions to collect evidence to serve the defense activities.

When present during the testimony and interrogation sessions, NBC will grasp the details and evidence of the case directly without having to go through records or notes, and will be able to directly access the content of the case. At the same time, it also avoids the case where the person taking the records makes mistakes or NBC misunderstands their expressions, leading to incorrect assessments of the details and content of the case, affecting the direction of NBC's litigation in protecting the rights and legitimate interests of the accused.

Point b, Clause 1, Article 73 of the 2015 Criminal Procedure Code adds a number of rights of the NBC, including: the right to be present when taking statements from the arrested person; After each time of taking statements and questioning by the competent person, the NBC can question the arrested person, the detained person, and the accused. According to the provisions of this Article, the meeting is

The investigator or prosecutor shall take the initiative, according to a pre-prepared plan, to take statements from the arrested person or the detained person, when questioning the accused in the presence of the NBC. To ensure that the NBC exercises its rights, Clause 1, Article 79 of the 2015 Criminal Procedure Code stipulates that “The competent authority conducting the proceedings must notify the defense attorney in a reasonable time in advance of the time and place of conducting the proceedings in which they have the right to participate according to the provisions of this Code”. When meeting during the testimony and interrogation sessions, the NBC may only question the accused when the competent authority conducting the testimony and interrogation agrees. However, after the conclusion of the testimony and interrogation by the competent authority, the NBC may meet and question the accused. According to the provisions of Point d, Clause 1, Article 73 of the 2015 Criminal Procedure Code, to prepare for this meeting, the NBC shall be notified in advance by the competent THTT agency of the time and place for taking statements, interrogation and the time and place for conducting other investigative procedural activities as prescribed by the Criminal Procedure Code; review the minutes of procedural activities in which he/she participates and procedural decisions related to the person he/she defends.

Article 11, Circular 46/2019/TT-BCA dated October 10, 2019 of the Ministry of Public Security stipulates ensuring the presence of NBC when conducting litigation activities. According to this regulation:

First, the agency handling the case must notify the time and place of the proceedings in which the NBC has the right to participate at least 24 hours in advance in the case where the NBC resides in the same province or centrally-run city as the agency handling the case, and 48 hours in the case where the NBC resides in a different province or centrally-run city than the agency handling the case, before the day of the proceedings. In case the NBC agrees with the Investigator or investigating officer on an earlier date, the proceedings shall still be carried out in accordance with that agreement.

This regulation helps the NBC to be more proactive and active in the sessions of taking statements from arrested and detained people and questioning suspects, because at the same time, the NBC can simultaneously participate in many different cases or the NBC knows the time of the session of taking statements and questioning is too urgent to arrange to participate in the activities.

This action affects the performance of its obligations.

Second, NBC has been notified by the investigation agency of the time and place to take statements from the arrested person, the detained person, and to take statements from the accused, but if he is not present, the activities of taking statements and taking statements will still be carried out.

This regulation requires NBC to comply with the information that has been announced. Investigators do not have to wait for NBC to be present to take statements and interrogate because this will greatly affect the process of solving cases, which often requires accuracy, speed and fair and timely handling of all criminal acts. This regulation still ensures NBC's rights but does not hinder the investigation.

Third, when taking statements from arrested persons, detainees, interrogating suspects, and revising statements from defendants, investigators, investigation officers, prosecutors (in cases where the re-statement is too high) and the NBC must comply with the provisions of Point b, Clause 1, Article 73 of the 2015 Criminal Procedure Code, Article 10 of Joint Circular No. 01/2018/TTLT/BCA-BQP-TANDTC-VKSNDTC dated January 23, 2018, internal regulations of temporary detention houses, temporary detention camps and other relevant legal provisions. If the NBC is found to have violated the law, the investigator, investigation officer, or prosecutor must immediately stop taking statements, interrogating suspects, and revising statements from defendants and make a record of this matter, and report to the Head or Deputy Head of the investigation agency for handling. In case the investigator or investigation officer violates the law, the NBC has the right to report the violation to the Head or Deputy Head of the investigation agency.

Fourth, when taking statements from detainees in emergency cases, arrested persons, persons in temporary detention, or questioning suspects, if the Investigator agrees to allow the investigator to ask questions, the investigator's questions and the answers of the detainees in emergency cases, arrested persons, persons in temporary detention, or suspects must be recorded in the minutes of taking statements and the minutes of questioning suspects. When the investigation ends, the Investigator or Investigation Officer must re-read or give the investigator the minutes of taking statements and the minutes of questioning suspects to read again. After confirming the correct content of the investigator's questions and the answers of the detainees in emergency cases, arrested persons, persons in temporary detention, or suspects, the Investigator or Investigation Officer shall request the investigator to sign the minutes.

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