of the Investigator and the Prison Warden, the time and number of meetings are also limited. Therefore, in many cases, the accused, defendants cannot fully and clearly declare to the Investigator because they are afraid of being "persecuted" by the Investigator and the Prison Warden. Currently, Article 10 of Circular 70/2011/TT-BCA stipulates: " When the Investigator has a written request for the Investigation Agency to meet the accused, the accused who is being detained, the Investigation Agency must carry out the procedures prescribed by law for the Investigator to meet the accused, the accused; if the meeting is refused, the Investigator must be notified in writing and clearly state the reason for the refusal" [4, Article 10] . This provision means that meeting the accused, the accused in custody is the right of the Investigator and the obligation of the Investigation Agency. From there, it will limit the situation where the meeting of the accused, the accused by the Investigator during the investigation phase largely depends on the permission of the Investigation Agency.
The right to read, take notes and photocopy documents in the case file related to the defense after the investigation is completed according to the provisions of law (Point g, Clause 2, Article 58 of the 2003 Criminal Procedure Code):
The right to photocopy documents in the case file related to the defense after the investigation is completed is a new right compared to the 1988 Criminal Procedure Code. During the investigation phase, this right is also stipulated in Article 11 of Circular 70/2011/TT-BCA, according to which the Investigation Agency must create favorable conditions for the Public Prosecutor to read, take notes, and photocopy documents in the case file after the investigation is completed: The Investigator must collect documents in the case file related to the defense into a file. If the Public Prosecutor reads and takes notes on these documents, the Investigator will arrange for the Public Prosecutor to read and take notes in the office of the Investigation Agency... In case the Public Prosecutor requests to photocopy these documents, the Investigator will directly photocopy (by photocopy) the documents and give them to the Public Prosecutor. The reading, recording or photocopying of documents in the case file related to the defense of NBC must be recorded in writing, and documents given to NBC must have a list of accompanying documents.
Recognizing the right to read, take notes and photocopy documents in the case file related to the defense after the investigation is completed helps NBC grasp the details and developments of the case, the evidence to accuse and exonerate the defendant, know what crimes they committed, and what grounds for accusation. From there, help NBC prepare defense arguments, participate in litigation at the trial. At the same time, detect shortcomings, limitations or violations of the law in the process of resolving the case, on that basis make necessary requests and complaints to the competent authority.
Right to participate in questioning and debating at court (Point h, Clause 2, Article 58 of the 2003 Criminal Procedure Code):
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NBC has the right to participate in questioning and debating at the trial. During the questioning, NBC has the right to ask the defendant and others about issues related to the case to get answers in favor of the defendant. Thereby, NBC requests the Panel of Judges to pay attention to statements favorable to the defendant that are not reflected in the case file or are not fully reflected. When debating, especially when convicting, NBC listens to and considers opinions related to the defendant's crime and on that basis NBC must analyze, argue, and provide reasons to express opinions in defense of the defendant and refute the accusation against the defendant. The right to participate in questioning and debating at court is the institutionalization of the Party's policy on judicial reform in the direction of expanding the litigation activities of the NBC "judicial agencies are responsible for creating conditions for lawyers to participate in the litigation process, participate in questioning the accused, study case files, debate democratically at court... the court's decision must be based mainly on the results of the debate at court..." [21]. The 2003 Criminal Procedure Code has amended and supplemented the principle of ensuring the right to equality before the Court and other regulations so that the Prosecutor must be proactive in exercising the right to prosecute, when there are different opinions in the debate, they must present their arguments for each opinion. The defendant, NBC and
Other participants in the proceedings have the right to present documents, objects, requests, to present all opinions and to debate democratically at the trial. When deliberating, the panel of judges may only base their verdict on documents and evidence examined at the trial, on the basis of full and comprehensive consideration of evidence and opinions of the prosecutor, the defendant and other participants in the proceedings [43, Articles 217, 218, 222]; when participating in the debate, the defendant has the right to respond to the opinions of the prosecutor and others more than once as prescribed by the 1988 Criminal Procedure Code. The presiding judge of the trial shall not limit the time for debate, creating conditions for the participants in the debate to present all opinions. The presiding judge of the trial shall have the right to request the prosecutor to respond to opinions related to the case of the defendant and other participants in the proceedings that have not been debated by the prosecutor [43, Article 218]. These are progressive regulations, demonstrating the equality and democracy of the NBC before the CQTTT, in line with the spirit of judicial reform proposed by the Party and the State. Because participating in the questioning at the Court is the most public investigation with the presence of all participants in the proceedings, the confrontation and presentation of new evidence, the refutation of incriminating evidence will be more favorable, the details of the case will be clarified on the basis of the participation of the parties and related people, because the Court is the only agency that has the right to declare a person guilty and apply punishment to them, so determining all evidence and documents at the trial is very important, the documents and objects collected at the trial are considered to have the highest legal value for the Panel of Judges to make a judgment on the defendant. Such regulations aim to further expand and strengthen the democratic environment, the openness and fairness of the VAHS settlement process, establish mechanisms to increasingly better protect human rights, ensure democratic rights for suspects, defendants and their NBCs, open up the best conditions and possibilities for them to exercise their right to defense; ensure that the case settlement process is objective, comprehensive, thorough and impartial; ensure that the settlement of cases is fair, transparent and impartial;
The NBC's questioning and debate at the trial creates conditions for NBC to participate in the process of supervising the activities of the Panel of Judges and the People's Procuracy, helping to protect the legitimate rights and interests of the defendant, and at the same time helping the Panel of Judges conduct the questioning in the right direction, making decisions in accordance with the law because participating in questioning and debate at the trial if not in accordance with legal regulations will lead to mistakes, wrongly convicting innocent people, and letting criminals escape. Based on the results of the debate at the Court, the Court issues a verdict on the case.
The right to appeal against decisions and procedural actions of competent agencies and persons conducting proceedings (Point i, Clause 2, Article 58 of the 2003 Criminal Procedure Code):
During the stages of the proceedings, if the NBC discovers that the decisions and procedural actions of the agency or person conducting the proceedings violate the law and affect the legitimate rights and interests of the defense subject, the NBC has the right to complain about those decisions and procedural actions. This provision is the concretization of the principle of ensuring the right to complain and denounce in the criminal procedure in Article 31 of the 2003 Criminal Procedure Code. The NBC can complain about related decisions and procedural actions such as: complaints related to the application of measures of arrest, temporary detention, temporary detention; complaints related to procedural procedures in search, seizure, temporary detention, and attachment of property such as: failure to seal seized property, objects, and not allowing the suspect to witness the search; in the examination of the scene, autopsy, examination of traces on the body; complaints about procedural procedures, the period of temporary detention, temporary detention, and extension of temporary detention; Complaints related to appraisal issues such as: inappropriate appraisal methods, lack of objective basis, leading to incorrect appraisal results; complaints related to acts that prevent NBC from exercising its rights and obligations in the stages of criminal proceedings, etc. NBC's right to complain contributes to ensuring that decisions and procedural actions of the agency and person performing criminal proceedings are objective, accurate, and in accordance with the law.
restrict violations of the law, infringements on the rights and legitimate interests of defendants and accused persons.
The right to appeal against the court's judgment or decision if the defendant is a minor or a person with mental or physical disabilities as prescribed in Point b, Clause 2, Article 57 of the 2003 Criminal Procedure Code (Point k, Clause 2, Article 58).
BLTTHS 2003):
This right is also stipulated in Article 231 of the 2003 Criminal Procedure Code: “ The defendant has the right to appeal to protect the interests of a minor or a person with mental or physical disabilities”. Thus, the defendant's right to appeal is only established in cases where the subject of the defense is a minor or a person with mental or physical disabilities as stipulated in Point b, Clause 2, Article 57 of the 2003 Criminal Procedure Code.
The above provisions show that the defendant has the right to appeal independently, regardless of the will of the defendant and their legal representative. Because these subjects often do not have enough cognitive capacity, their level, knowledge, and legal experience are limited, or their cognitive capacity and ability to control their behavior are limited. Therefore, they cannot consider whether the judgment or decision is appropriate to the nature, level, and behavior they committed. Therefore, the 2003 Criminal Procedure Code stipulates that the defendant has the right to appeal to protect the legitimate rights and interests of the defendant in the above case, which is extremely necessary. However, the provisions on the right to appeal of the defendant are not really complete, leading to difficulties and problems in the implementation process. Because the Criminal Procedure Code does not clearly state whether the right to appeal of the defendant in this case is independent or dependent on the will of the defendant or the defendant's legal representative. Therefore, at the first instance trial, NBC was the one who protected the legal rights and interests of the above subjects, but after participating in the first instance trial, the defendants themselves or their legal representatives
does not accept or request NBC to appeal, but NBC still exercises the right to appeal against the judgment or decision of the Court because NBC believes that the judgment or decision of the Court is unfounded, violates the law, and infringes upon the legitimate rights and interests of the defendant. Therefore, a conflict will arise, so can NBC exercise the right to appeal by itself or must it have the approval or request of the defendant or their legal representative. In the case that the defendant and their legal representative do not accept or request NBC to appeal, but NBC still exercises the right to appeal, when participating in the appeal trial, according to the provisions of Article 245 of the 2003 Criminal Procedure Code, the Court will only summon the defendant who appeals, not summon NBC's client. So in the case where a minor or a person with mental or physical disabilities receives a judgment or decision of the appellate court that has come into legal effect but affects their legitimate rights and interests, does NBC have to bear responsibility?
In the case of NBC participating in defending a minor or a person with physical or mental disabilities at the request of the Criminal Procedure Authority. Although the 2003 Criminal Procedure Code stipulates that the NBC Certificate is valid throughout the proceedings, in reality, the NBC Certificate is issued at each stage of the proceedings, so in the case of accepting the case for appeal, if the defendant is a minor or a person with physical or mental disabilities, the Court still carries out the procedure to request the appointment of a NBC, thus leading to the case of two NBCs appearing at the appeal court: the NBC participating at the appeal stage appointed by the Court of Appeal and the NBC participating from the first instance stage due to exercising the right to appeal.
Equal rights with the Prosecutor in presenting evidence, documents, objects, making requests and debating democratically before the Court. The Court has the responsibility to create conditions for the Prosecutor to exercise those rights in order to clarify the objective truth of the case (Article 19 of the 2003 Criminal Procedure Code, 2003 Criminal Procedure Code):
This provision is in Chapter II of the Criminal Procedure Code (basic principles). This is both a principle and a right of the Public Prosecutor. However, in reality, violations of this principle are still common. There are cases where the Public Prosecutor does not respect the Public Prosecutor during the debate, making statements that lower the prestige and honor of the Public Prosecutor. On the contrary, there are also cases where the Public Prosecutor, instead of presenting evidence to exonerate or reduce the criminal liability of the client, makes comments about the attitude and conduct of the Public Prosecutor, demanding equal rights with the Public Prosecutor in all litigation activities. There are cases where the Public Prosecutor argues fiercely, creating a tense atmosphere, behaving uncivilly in court, etc.
Thus, by regulating the rights of the NBC in the criminal procedure, it has contributed to enhancing the position and role of the NBC in the criminal procedure, creating conditions for NBC to participate equally and democratically with the agencies and people in the criminal procedure, avoiding abuse of power from the agencies and people in the criminal procedure, helping the criminal procedure agency to resolve the case objectively, fairly, accurately, and in accordance with the law, protecting the rights and legitimate interests of the person being defended. At the same time, it contributes to the judicial reform process set forth in the Resolutions of the Party.
2.1.2. Duties of the defense attorney
Use all measures prescribed by law to clarify the circumstances that determine the innocence of the accused, the defendant, and the mitigating circumstances of the accused. Depending on each stage of the proceedings, when collecting documents and objects related to the case, the NBC is responsible for handing them over to the Investigation Agency, the Procuracy, and the Court. The handover of such documents and objects between the NBC and the Investigation Agency must be recorded in accordance with the provisions of Article 95 of the Criminal Procedure Code (Point a, Clause 3, Article 58 of the 2003 Criminal Procedure Code):
NBC has the obligation to use all measures prescribed by law to find out the objective truth of the case to help protect the legitimate rights and interests of the person.
be defended. This is the natural duty and also the function of the defense. Using all measures here does not mean using illegal measures to defend one's client such as: intentionally inciting the defendant to pretend to be sick to postpone the trial, leading to the case being resolved for a long time, citing the reason of being busy and not attending the trial so that the panel of judges postpones the trial, or taking advantage of acquaintance with the person being defended to "fix the case" for the person being defended,... The defense counsel is not allowed to accuse or aggravate the criminal liability of the person being defended, even in cases where the criminal behavior of the defended subject is clear, it is also necessary to analyze and help them honestly confess to receive leniency from the law. If they do not agree, the defense counsel has the right to refuse but is not allowed to accuse the client before the trial agency. If so, it is completely contrary to the defense function and professional ethics. This provision is intended to limit the situation where NBC is not responsible for the defense work for its clients, especially in cases where NBC participates at the request of the Investigation Agency. In fact, NBC's mentality is that their participation is a formality, so they are not active and proactive in using all measures prescribed by law to clarify the circumstances that determine the innocence of their clients and the circumstances that reduce their clients' criminal liability.
Assisting the accused, defendants and accused in legal matters to protect their legitimate rights and interests (Point b, Clause 3, Article 58 of the 2003 Criminal Procedure Code):
Normally, when defendants, accused persons, and defendants are "caught in the litigation circle" with unstable psychology, on the other hand, their level of awareness and legal knowledge is limited, so legal assistance for them is extremely necessary. For example, the NBC can explain the rights and obligations of the person being defended, of the agency, the person who is being defended, about honestly declaring to receive leniency from the law, encourage the subject of the defense to voluntarily repair, compensate for damages, overcome the consequences to enjoy mitigating circumstances of criminal liability, etc.