Joint Circular No. 10/2007/TTLT-BTP-BCA-BQP-BTC-VKSNDTC-TANDTC guiding the implementation of certain provisions on legal aid in litigation activities.

JOINT CIRCULAR

Guidelines for Implementing Certain Provisions on Legal Aid in Litigation Activities

_____________________________

To implement correctly and uniformly the provisions of the Legal Aid Law in litigation activities; the Ministry of Justice, the Ministry of Public Security, the Ministry of Defense, the Ministry of Finance, the Supreme People's Procuracy, and the Supreme People's Court provide guidance on certain specific issues as follows:

I. RESPONSIBILITIES OF THE LITIGATION ENFORCEMENT AUTHORITIES, TEMPORARY DETENTION FACILITIES, TEMPORARY HOLDING HOUSES, AND STATE LEGAL AID CENTERS AND THEIR BRANCHES (ARTICLE 7 OF THE LEGAL AID LAW)

1. The State Legal Aid Center and its branches (hereinafter referred to as the Center and Branches) shall be responsible for:

a) Providing to the Investigation Agency, the Procuracy, the Court, Temporary Detention Facilities, and Temporary Holding Houses:

a1) A legal aid information sheet (persons eligible for legal aid; rights and obligations of persons receiving legal aid; procedures for requesting legal aid; contact address and phone number of the Center and Branches);

a2) A sample application form for legal aid, a legal aid mailbox, a legal information pamphlet, and related legal documents on legal aid, and disseminating legal aid regulations when requested;

b) Announcing the list of Legal Aid Assistants and Lawyer Collaborators (hereinafter referred to as Lawyer Collaborators) of the Center and Branches within their local jurisdiction along with contact addresses so that the Investigation Agency, the Procuracy, the Court, Temporary Detention Facilities, and Temporary Holding Houses may contact them if necessary;

c) Providing full information about legal regulations on legal aid in cases of amendments or supplements to the Investigation Agency, the Procuracy, the Court, Temporary Detention Facilities, and Temporary Holding Houses.

2. The Investigation Agency, the Procuracy, and the Court shall be responsible for:

a) Publicly posting the legal aid information sheet at the public reception area of their offices;

b) Placing a legal aid mailbox at the public reception areas of their offices to distribute free legal information pamphlets, sample application forms for legal aid, and related legal documents on legal aid so that the public can access them when needed;

c) Actively requesting the Center and Branches to cooperate in implementing communication and guidance activities on legal aid.

3. Temporary Detention Facilities and Temporary Holding Houses shall be responsible for publicly posting the legal aid information sheet next to the rules and regulations of the Temporary Detention Facility and Temporary Holding House, and implementing the activities guided in points b and c of Section 2 of Part I hereof.

4. Heads and Deputy Heads of the Investigation Agency, Investigators; Procurator Generals and Deputy Procurator Generals of the Procuracy, Prosecutors; Presidents and Deputy Presidents of the Court, Judges, Associate Judges, and Court Secretaries before opening a trial session (litigation conductors) shall be responsible for:

a) When explaining to persons under temporary detention, pre-trial detention, suspects, defendants, and other parties about their rights and obligations according to procedural laws, they shall explain to them about their right to legal aid and guide them to access information on legal aid;

In the case where a person arrested under an arrest warrant is under temporary detention and is eligible for legal aid, the competent Investigation Agency where the arrest was made or received shall be responsible for informing and guiding the arrested person or their relatives to contact the Center or Branch located in the jurisdiction of the litigation enforcement authority handling the case to complete the procedures for obtaining a certificate to participate in litigation.

b) If they discover a party falling under one of the categories eligible for legal aid as stipulated in Article 10 of the Legal Aid Law and Article 2 of Decree No. 07/2007/ND-CP dated January 12, 2007 of the Government detailing and guiding the implementation of certain provisions of the Legal Aid Law (hereinafter referred to as Decree No. 07/2007/ND-CP), they shall guide them or their relatives or legal representatives on the procedures for requesting legal aid and provide them with a sample application form for legal aid and the contact address of the Center and Branches;

c) Persons under temporary detention or pre-trial detention shall be informed by the litigation conductors, the Wardens of Temporary Detention Facilities, and the Chiefs of Temporary Holding Houses about their right to legal aid; if they request legal aid, they shall be guided to write an application for legal aid, and their applications shall be transferred by these individuals or units to the Center or Branch where the person seeking legal aid requests or in the jurisdiction of the litigation enforcement authority handling the case or where the Temporary Detention Facility or Temporary Holding House is located;

d) The explanation of the right to legal aid to persons under temporary detention, pre-trial detention, suspects, defendants, and other parties must be recorded in the litigation record and kept in the case file. In cases where these persons do not request legal aid or refuse it, the litigation conductors shall also clearly record this in the minutes.

5. National Defense agencies, Public Security agencies, the Procuracy, and the Court encourage and create conditions for officials, civil servants, and employees working in their agencies and organizations to become legal aid collaborators to provide legal advice to persons eligible for legal aid. Legal advice must comply with legal regulations and internal rules and regulations of their respective sectors.

II. ISSUANCE AND REVOCATION OF PARTICIPATION IN LITIGATION CERTIFICATES (ARTICLE 39 OF THE LEGAL AID LAW)

1. Heads and Deputy Heads of the Investigation Agency; Procurator Generals and Deputy Procurator Generals of the Procuracy; Presidents and Deputy Presidents of the Court, Chief Justices and Deputy Chief Justices of the Supreme People's Court of Appeals shall issue certificates for defense counsel and certificates for representatives of parties' interests in criminal cases; Judges assigned to handle civil and administrative cases shall issue certificates for representatives of parties' legitimate rights and interests in civil and administrative cases (hereinafter collectively referred to as participation in litigation certificates) to Legal Aid Assistants and Lawyer Collaborators in accordance with Article 39 of the Legal Aid Law as follows:

a) Within three working days from the date of receiving the decision to appoint a person to participate in litigation issued by the Center or Branch (in accordance with model TP-TGPL-4A promulgated by Decision No. 03/2007/QĐ-BTP dated June 1, 2007 of the Minister of Justice on the issuance of certain forms used in legal aid activities), the investigative body handling the case shall perform the registration in the Case Register and consider issuing a certificate of participation in litigation to the Legal Aid Counsel or Collaborating Lawyer;

In cases where the Center or Branch decides to appoint a Legal Aid Counsel or Collaborating Lawyer to participate in litigation for defense and protection of legitimate rights and interests of persons under temporary detention, the Investigative Agency shall issue a certificate of participation in litigation to the appointed person within twenty-four hours from the time of receipt of the decision to appoint a person to participate in litigation issued by the Center or Branch;

b) In cases where the Investigative Agency, Prosecutor's Office, or Court refuses to issue a certificate of participation in litigation to the Legal Aid Counsel or Collaborating Lawyer, they must notify the Center or Branch in writing and specify the reasons for refusal. Within no more than one working day from the date of receipt of the written refusal to issue a certificate of participation in litigation, the Center or Branch shall be responsible for appointing another Legal Aid Counsel or Collaborating Lawyer to replace them. If there are valid reasons for disagreeing with the refusal of the Investigative Agency, Prosecutor's Office, or Court, the Center or Branch, Legal Aid Counsel, and Collaborating Lawyer have the right to appeal against the refusal according to the provisions of procedural law but still must appoint a replacement immediately to ensure the implementation of legal aid;

2. The validity of the certificate of participation in litigation of Legal Aid Counsel and Collaborating Lawyer:

a) In criminal proceedings, if the Legal Aid Counsel or Collaborating Lawyer participates in litigation from which stage, the certificate of participation in litigation shall be issued by the investigative body of that stage and shall be valid from the date of issuance until the conclusion of the case, including cases requiring supplementary investigation. The certificate of participation in litigation shall be revoked in any of the following circumstances:

a1) The person receiving legal aid withdraws the request for legal aid;

a2) The Legal Aid Counsel or Collaborating Lawyer has their certificate of participation in litigation revoked;

a3) The Legal Aid Counsel or Collaborating Lawyer is replaced and is not allowed to participate in litigation according to the provisions of procedural law and legal aid law;

b) In cases where the case requires re-investigation or retrial; splitting or merging cases, if the Legal Aid Counsel or Collaborating Lawyer does not fall into the category of having their certificate of participation in litigation revoked or replaced, they will continue to participate in litigation until the conclusion of the case. In cases of resuming the investigation of the case, a new certificate of participation in litigation must be issued according to the general procedure stipulated in Section 1 of Part II herein;

c) In civil and administrative proceedings, the issuance of a certificate of participation in litigation for the Legal Aid Counsel or Collaborating Lawyer shall be carried out by the Court handling the civil matter or administrative case, and this certificate shall be valid from the date of issuance until the conclusion of the case, except in cases where the Legal Aid Counsel or Collaborating Lawyer is replaced and is not allowed to participate in litigation according to the provisions of procedural law and legal aid law, in which case the newly appointed replacement shall be issued this certificate according to the general procedure stipulated in Section 1 of Part II herein;

3. The Legal Aid Counsel and Collaborating Lawyer who are issued certificates to participate in litigation shall do so in the following capacities:

a) The Legal Aid Counsel participates in litigation in accordance with Clause 3, Point b of Article 21 of the Legal Aid Law, representing the lawful interests of persons under temporary detention, defendants, and accused persons in defense; protecting the rights of parties in criminal cases; representing or protecting the lawful rights and interests of parties in civil matters or administrative cases;

b) The Collaborating Lawyer participates in litigation in the capacity of: defending persons under temporary detention, defendants, and accused persons in defense; protecting the rights of parties in criminal cases; representing or protecting the lawful rights and interests of parties in civil matters or administrative cases;

4. The Legal Aid Counsel and Collaborating Lawyer appointed by the Center or Branch to participate in litigation shall directly go to the Investigative Agency, Prosecutor's Office, or Court to receive the certificate of participation in litigation. When receiving the certificate of participation in litigation, in addition to presenting the decision to appoint a person to participate in litigation issued by the Center or Branch, the Legal Aid Counsel must present their Legal Aid Counsel card; the Collaborating Lawyer must present their Lawyer card and Collaborating Lawyer card;

5. Revocation of the certificate of participation in litigation:

a) The Legal Aid Counsel shall have their certificate of participation in litigation revoked in the following circumstances:

a1) Committing one of the prohibited acts stipulated in Clause 1 of Article 9 of the Legal Aid Law;

a2) Violating the obligations of a defense counsel as stipulated in Points d and e of Clause 3 of Article 58 of the Criminal Procedure Code;

a3) Being relieved of duty according to Clause 2 of Article 20 of Decree No. 07/2007/NĐ-CP;

b) The Collaborating Lawyer shall have their certificate of participation in litigation revoked in the following circumstances:

b1) Committing one of the prohibited acts stipulated in Clause 1 of Article 9 of the Legal Aid Law or Clause 1 of Article 9 of the Lawyers Law;

b2) Having their lawyer practice certificate revoked according to Clause 1 of Article 18 of the Lawyers Law;

b3) Violating the obligations of a defense counsel as stipulated in Points d and e of Clause 3 of Article 58 of the Criminal Procedure Code.

c) The investigative authority has issued a participation certificate in proceedings to the Legal Aid Assistant or Collaborating Lawyer, which such authority may revoke and immediately notify in writing the Legal Aid Center or Branch that dispatched the Legal Aid Assistant or Collaborating Lawyer to replace them with another person (the decision to replace shall be made according to Model TP-TGPL-4B issued together with Decision No. 03/2007/QĐ-BTP dated June 1, 2007 of the Minister of Justice on the issuance of certain forms used in legal aid activities).

d) If the investigative authority discovers that a Legal Aid Assistant or Collaborating Lawyer does not meet the conditions or standards for participation from the outset, it shall revoke their participation certificate and notify the Legal Aid Center or Branch, as well as the person receiving legal aid.

In cases where the investigative authority only discovers the need to revoke a Legal Aid Assistant's or Collaborating Lawyer's participation certificate at a later stage of proceedings, the subsequent investigative authority shall revoke the certificate and notify the previous investigative authority that issued the certificate, the person receiving legal aid, and the Legal Aid Center or Branch to appoint a replacement. Whether to retain the results of the Legal Aid Assistant's or Collaborating Lawyer's participation in the proceedings is decided by the investigative authority, while in civil cases or administrative litigation cases, it is decided by the person receiving legal aid and notified to the Legal Aid Center and Branch.

e) When a Legal Aid Assistant's legal aid card or a Collaborating Lawyer's lawyer card or collaborator card is revoked or changed according to Articles 2, 3, and 4 of Article 45 of the Legal Aid Law, the Legal Aid Center or Branch must immediately notify in writing the Investigative Authority, Prosecutor's Office, and Court to revoke the participation certificate and simultaneously appoint another person to replace them.

f) A Legal Aid Assistant or Collaborating Lawyer who has been dispatched by the Legal Aid Center or Branch to participate in proceedings and whose participation certificate is revoked, card is revoked, or they are replaced will have their involvement in the legal aid case terminated from the moment of revocation or replacement.

III. COORDINATION ACTIVITIES IN LEGAL AID DURING THE STAGES OF PROCEEDINGS (Clause 3 of Article 21, Article 29, Article 39, Clause 3 of Article 43 of the Legal Aid Law) DURING THE STAGES OF THE PROCEEDINGS (CLAUSE 3, ARTICLE 21, ARTICLE 29, ARTICLE 39, CLAUSE 3, ARTICLE 43 OF THE LEGAL AID LAW) Article 39, Clause 3 of Article 43 of the Legal Aid Law)

1. The Legal Aid Center and Branches are responsible for:

a) Verifying the scope of persons eligible for legal aid, ensuring that those receiving legal aid meet the conditions stipulated in Article 10 of the Legal Aid Law and Article 2 of Decree No. 07/2007/NĐ-CP;

b) Dispatching Legal Aid Assistants or Collaborating Lawyers to participate in proceedings in accordance with the provisions of the Legal Aid Law. In cases where the law requires replacing a Legal Aid Assistant or Collaborating Lawyer, the Legal Aid Center and Branches must dispatch another Legal Aid Assistant or Collaborating Lawyer within three days of receiving a written notification from the investigative authority, except in cases of justifiable reasons, in which case they must immediately notify the investigative authority;

c) Accepting and reviewing legal aid case files and disbursing allowances to Collaborating Lawyers and subsidies to Legal Aid Assistants for their work in legal aid cases during proceedings according to current regulations; resolving complaints from Legal Aid Assistants and Collaborating Lawyers within their jurisdiction;

d) The Legal Aid Center and Branches cooperate with Investigative Authorities, Prosecutor's Offices, Courts, and those conducting proceedings to inspect and evaluate the implementation of legal aid by Legal Aid Assistants and Collaborating Lawyers to ensure compliance with legal aid laws and procedural laws.

2. Legal Aid Assistants and Collaborating Lawyers are responsible for:

a) Fulfilling the rights and obligations of legal aid implementers when participating in proceedings as prescribed by procedural laws and legal aid laws;

b) When participating in proceedings, Legal Aid Assistants and Collaborating Lawyers have the same rights and obligations as defense counsel, representatives, or defenders of legitimate interests as prescribed by procedural laws;

c) Legal Aid Assistants and Collaborating Lawyers must refuse to participate in proceedings in the following circumstances: if they have already participated in the case; if they are relatives of individuals involved in the case; if they have previously participated in the case as witnesses, experts, or interpreters; or if they fall under any of the circumstances specified in Article 2 of Article 45 of the Legal Aid Law;

d) During the course of proceedings, if Legal Aid Assistants or Collaborating Lawyers discover that those conducting proceedings are violating the law or causing undue harassment or hindrance to their exercise of rights and obligations in proceedings, they have the right to lodge complaints according to procedural laws and simultaneously report to the Legal Aid Center and Branch.

3. Within their duties and powers, Investigative Authorities, Prosecutor's Offices, and Courts are responsible for:

a) Issuing procedural decisions to Legal Aid Assistants or Collaborating Lawyers who have participated in the case, specifically as follows:

In criminal proceedings, issuing procedural decisions to defense counsel and representatives of parties' interests in criminal cases, specifically: investigation conclusions, decisions to bring the case to trial, decisions to temporarily suspend or terminate the case, copies of judgments, notifications of appeals (if any), decisions on appeals (if any), appellate court decisions;

In civil proceedings and administrative litigation, issue procedural decisions as prescribed for the representative or the defender of the legitimate rights and interests of the parties in civil cases or administrative lawsuits, specifically including: mediation settlement records, decisions recognizing the agreement of the parties, decisions resolving civil matters; agreements on the resolution of administrative lawsuits; decisions to bring cases to trial, decisions temporarily suspending or terminating cases, copies of judgments, notifications regarding appeals (if any), appeal decisions (if any), appellate court decisions;

b) The Court shall notify the schedule for hearings to the Center, Branches, and legal aid implementers who have been assigned to participate in litigation when the Center or Branch assigns legal aid officers or collaborating lawyers to participate in litigation; clearly record in the judgment or decision the name of the legal aid officer or collaborating lawyer assigned to participate in litigation; clearly record the opinions or viewpoints of the legal aid officer or collaborating lawyer when defending the interests of the person receiving legal aid in the judgment or decision of the Court;

Ensure that legal aid officers and collaborating lawyers, when participating in litigation according to Article 29 of the Legal Aid Law, fully exercise the rights and obligations of defenders, representatives, and protectors of legitimate rights in criminal cases, civil matters, and administrative lawsuits as prescribed by procedural laws; confirm the time during which legal aid officers or collaborating lawyers work and study case files at their respective agencies;

d) During the process of participating in litigation, if violations of the law by legal aid officers or collaborating lawyers are discovered, the Investigative Agency, Prosecutor's Office, and Court shall handle them according to the law and notify the Center and Branches to promptly address the matter within their authority and replace the participants in the litigation;

4. The Warden of the Detention Center and the Head of the Holding House are responsible for arranging for legal aid officers and collaborating lawyers to meet with persons under detention, suspects, and defendants according to the provisions of the procedural law on detention and pretrial detention; confirm the time during which legal aid officers and collaborating lawyers meet with persons under detention, suspects, and defendants;

IV. IMPLEMENTATION

1. Agencies and organizations directly under the Ministry of Justice, Ministry of Public Security, Ministry of National Defense, Ministry of Finance, Supreme People's Procuracy, and Supreme People's Court shall be responsible for implementing and directing relevant units under their management to fully carry out the contents prescribed in this Circular;

2. Establish a Multi-sector Coordination Council on Legal Aid in Litigation at the central level to assist the Minister of Justice, Minister of Public Security, Minister of National Defense, Minister of Finance, President of the Supreme People's Court, and Chief Procurator of the Supreme People's Procuracy; establish a Multi-sector Coordination Council at the provincial level to assist the Director of the Department of Justice, Director of Public Security, Director of the Department of Finance, Chief Procurator of the Provincial People's Procuracy, President of the Provincial People's Court, and Commander of the Military Region where the headquarters is located to uniformly direct the coordination of legal aid activities in litigation effectively, specifically as follows:

a) The Minister of Justice shall issue a decision to establish the Central Multi-sector Coordination Council after obtaining a unified opinion on personnel from the central multi-sector. The Central Multi-sector Coordination Council includes Deputy Ministers of the Ministries of Justice, Public Security, National Defense, Finance, Deputy Chief Procurators of the Supreme People's Procuracy, Deputy Presidents of the Supreme People's Court, and the Director of the Legal Aid Bureau of the Ministry of Justice. The Chairman of the Council shall be assumed by the leadership of the Ministry of Justice. Members of the Council work on a part-time basis. The Ministry of Justice is the permanent body of the Council;

Supporting the Central Multi-sector Coordination Council includes leaders of functional units of the Ministry of Justice, Supreme People's Court, Supreme People's Procuracy, Ministry of Public Security, Ministry of National Defense, and Ministry of Finance;

The Central Multi-sector Coordination Council has the responsibility to assist multi-sector leadership in researching, directing, guiding, and inspecting the implementation of legal aid work in litigation; statistically reporting legal aid cases in litigation activities; proposing necessary measures to resolve issues in coordination work and enhance effective legal aid coordination in litigation; periodically summarizing and concluding annually to evaluate the implementation of this Circular; proposing commendations and handling violations; resolving or proposing solutions to issues arising in practical coordination activities;

b) The Chairman of the People's Committee at the provincial level shall issue a decision to establish the Provincial Multi-sector Coordination Council based on the proposal of the Department of Justice after obtaining a unified opinion from local sector leadership. The Provincial Multi-sector Coordination Council on Legal Aid in Litigation includes representatives of the leadership of the following agencies: Justice, Public Security, Finance, People's Procuracy, Provincial People's Court, Office of the Military Region Command where the headquarters is located, Director of the Legal Aid Center, and is chaired by the Director of the Department of Justice. Members of the Council work on a part-time basis. The Department of Justice is the permanent body of the Council;

The Provincial Multi-sector Coordination Council is responsible for assisting sector leadership at the provincial level in directing, guiding, monitoring, inspecting, and coordinating to resolve emerging issues at the local level; organizing periodic evaluations of the quality of participation in litigation by legal aid officers and collaborating lawyers, the activities of collaborating legal aid officers who are officials, civil servants, and employees of various sectors; statistically reporting legal aid cases in litigation activities at the local level; periodically summarizing, concluding, and reporting to sector leadership and the Central Multi-sector Coordination Council annually on the implementation of this Circular.

The Secretariat of the Provincial Inter-sectoral Coordination Council shall include the leadership of the State Legal Aid Center, and representatives from the Departments of Public Security, Finance, People's Procuracy, People's Court at provincial level, and the Office of the Military Region Command where the headquarters is located.

3. The funds for coordinating the provision of legal aid in litigation activities are included in the annual state budget of each sector. The allowances paid to Legal Aid Assistants and the subsidies provided to collaborating lawyers are implemented according to current regulations by the Center and Branches. The funds for summarizing and concluding joint activities at the local level, setting up Information Boards on legal aid, Legal Aid Mailboxes, pamphlets on laws, and other related materials are included in the annual budget of the State Legal Aid Center. The costs for copying documents, summarizing, concluding, and evaluating coordination at both central and local levels by each sector are included in the annual budget of that sector.

V. EFFECTIVE DATE

1. This Circular shall take effect fifteen days after its publication in the Official Gazette.

2. In the course of implementing this Circular, subordinate units under inter-sectoral bodies shall promptly reflect any difficulties requiring clarification or additional unified guidance to the Ministry of Justice, Ministry of Public Security, Ministry of Defense, Ministry of Finance, Supreme People's Procuracy, and Supreme People's Court for guidance or amendments to ensure compliance./.