Circular No. 70/2011/TT-BCA detailing the implementation of provisions related to ensuring the right to defense during the investigation phase of criminal cases under the Criminal Procedure Code

CIRCULAR

Regulations detailing the implementation of provisions of the Criminal Procedure Code related to

ensuring the right to defense during the investigation phase of criminal cases

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Based on the Criminal Procedure Code dated November 26, 2003;

Pursuant to Decree No. 77/2009/NĐ-CP dated September 15, 2009 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Public Security;

The Minister of Public Security shall stipulate the measures to ensure the right to defense for persons under temporary detention, defendants; the rights of defenders when participating in proceedings during the investigation phase of criminal cases as follows:

Article 1. Scope of Regulation

This Circular details the implementation of relevant provisions of the 2003 Criminal Procedure Code concerning the protection of the right to defense for persons under temporary detention, defendants; the rights of defenders during the investigation phase of criminal cases handled by investigative agencies within the People's Public Security.

The protection of the right to defense for persons under temporary detention, defendants, as prescribed by the Legal Aid Law, shall be implemented according to Joint Circular No. 10/2007/TTLT-BTP-BCA-BQP-BTC-VKSNDTC-TANDTC dated December 28, 2007, issued by 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 guiding the application of certain provisions on legal aid in judicial proceedings.

Article 2. Applicability

This Circular applies to Investigative Agencies, Heads, Deputy Heads of Investigative Agencies, Investigators, officers assigned to perform certain investigative activities, Wardens of Detention Centers, Chiefs of Holding Houses, officers of Detention Centers, Holding Houses within the People's Public Security; organizations practicing law, lawyers; persons under temporary detention, defendants; organizations and individuals related to the defense activity during the investigation phase of criminal cases handled by Investigative Agencies within the People's Public Security.

Article 3. Principles for Ensuring the Right to Defense During the Investigation Phase of Criminal Cases

1. Compliance with legal regulations.

2. Respecting and protecting the right to self-defense or to have another person defend on behalf of persons under temporary detention, defendants; the rights of defenders.

3. Ensuring impartiality and objectivity in defense activities.

Article 4. Explanation of the Right to Self-Defense or to Have Another Person Defend and Implementation of Procedures for Requesting a Defender for Persons Under Temporary Detention, Defendants

1. When delivering the Decision on Temporary Detention to the person under temporary detention or the Decision on Indictment to the defendant, the Investigator must read and explain to them clearly about their rights and obligations as persons under temporary detention, defendants, as stipulated in Articles 48 and 49 of the Criminal Procedure Code, and prepare a record of delivery and receipt of the decision. In the record, it must clearly state the opinion of the person under temporary detention, defendant regarding whether they wish to request a defender or not. If the person under temporary detention, defendant who is detained requests a defender, it shall be carried out as follows:

a) In the case where the person under temporary detention, defendant who is detained is a member of the Vietnam Fatherland Front or its affiliated organizations and requests that the organization they belong to appoint a defender for them, the Investigator must record their opinion in the record and guide them to write a request in writing. Within 24 (twenty-four) hours from the time the person under temporary detention, defendant submits the written request, the Investigative Agency has the responsibility to send the request for appointment of a defender to the organization of which the person under temporary detention, defendant is a member via registered mail or express delivery;

b) In the case where the person under temporary detention, defendant who is detained requests a defender to be their lawful representative, the Investigator must guide them to write a request, clearly stating the name, age, address of the lawful representative. Within 24 (twenty-four) hours from the time the person under temporary detention, defendant submits the written request, the Investigative Agency has the responsibility to send the request of the person under temporary detention, defendant to the lawful representative whom they have requested to defend via registered mail or express delivery;

c) In the case where the person under temporary detention, defendant who is detained requests a lawyer as their defender, the Investigator must guide them to write a request for a lawyer, if they specifically request a named lawyer (with clear name and address), then within 24 (twenty-four) hours, the Investigative Agency has the responsibility to send the request for a lawyer of the person under temporary detention, defendant to the lawyer they have requested via registered mail or express delivery; in the case where the person under temporary detention, defendant writes a request for a relative (with clear name and address) to contact a lawyer to defend them, within 24 (twenty-four) hours from the time the person under temporary detention, defendant submits the request, the Investigative Agency has the responsibility to send the request to the relative of the person under temporary detention, defendant via registered mail or express delivery.

2. In the case where the person under temporary detention, defendant has not yet requested a defender, during the first interrogation of the person under temporary detention or questioning of the defendant, the Investigator must ask clearly whether they wish to request a defender or not and must record their opinion in the record. If the person under temporary detention, defendant who is detained wishes to request a defender, it shall be carried out according to the provisions of Clause 1 of this Article.

3. In the case where the defendant commits a crime with a maximum penalty of death as prescribed in the Penal Code; the defendant is a minor, a person with mental or physical disabilities, if after explaining and informing the defendant and their lawful representative about the right to request a defender and they refuse, the Investigative Agency must issue a document requesting the Bar Association in the jurisdiction of the Investigative Agency handling the case to appoint a defender for them or propose the Vietnam Fatherland Front, its affiliated organizations to appoint a defender for their members; in the case where the Bar Association, the Vietnam Fatherland Front, its affiliated organizations have appointed a defender but the defendant or their lawful representative requests to change or refuse the appointed defender, the Investigator must prepare a record clearly stating their opinion. In the case where the person under temporary detention, defendant or their lawful representative requests to change the defender, the Investigative Agency must issue a document requesting the Bar Association to appoint another defender for them or propose the Vietnam Fatherland Front, its affiliated organizations to appoint another defender for their members.

4. In cases where a person under temporary detention or a suspect commits a crime endangering national security, if the Prosecutor has decided to allow defense counsel to participate in proceedings from the end of the investigation, the Investigator must inform them of the Prosecutor's decision and explain to them the rights and obligations of the person under temporary detention or suspect as stipulated in Articles 48 and 49 of the Criminal Procedure Code.

Article 5. Procedures for issuing a certificate of defense counsel for lawyers

1. A lawyer requesting a certificate of defense counsel and participation in proceedings must have the following documents:

a) A lawyer’s card (certified copy);

b) A request for a lawyer from the person under temporary detention or suspect; a request for a lawyer from a relative of the person under temporary detention or suspect (in cases where the person under temporary detention or suspect is detained and requests a lawyer through a relative); or a request for a lawyer from the legal representative of the person under temporary detention or suspect (for persons under temporary detention or suspects who are minors, or those with mental or physical disabilities);

c) An introduction letter from the law practice organization where the lawyer practices or an introduction letter from the Bar Association (in cases where the lawyer practices individually);

d) An assignment document from the Bar Association as provided for in Clause 3 of Article 4 of this Circular.

2. Receiving applications for certificates of defense counsel:

a) In cases where applications for certificates of defense counsel are sent to the Investigation Agency via postal service or official correspondence, upon receipt of these documents, the Investigation Agency stamps the official correspondence, records the time, date, month, and year of receipt, and immediately hands over the documents to the Investigator or assigned staff member; the Investigator or assigned staff member must immediately check the received documents, and if they find any deficiencies or procedural errors, they must notify (by registered mail or express delivery) the applicant for the certificate of defense counsel to correct and supplement the missing information;

b) In cases where the applicant for the certificate of defense counsel or a representative of the law practice organization where the lawyer applies for the certificate of defense counsel directly visits the Investigation Agency to apply for the certificate of defense counsel and submit related documents, the Investigator or assigned staff member must receive and check the documents; if any deficiencies or procedural errors are found, they must immediately guide the applicant to correct and supplement the information. If all the required documents as stipulated in Clause 1 of this Article are complete, they must issue a receipt confirming the receipt of the application for the certificate of defense counsel, specifying the time for receiving the certificate of defense counsel or a refusal notice;

c) In cases where it is necessary to keep the investigation confidential regarding criminal cases involving crimes endangering national security, the Investigation Agency must request the Prosecutor at the same level to decide on allowing defense counsel to participate in proceedings from the end of the investigation; refuse to accept any documents related to the defense and explain to the lawyer requesting the certificate of defense counsel the provisions of Clause 1 of Article 58 of the Criminal Procedure Code;

d) The time for considering and issuing a certificate of defense counsel starts from the moment the Investigator or assigned staff member receives all relevant documents for the defense;

3. Considering the issuance of a certificate of defense counsel:

Investigators and staff members assigned to review, after receiving all relevant documents related to the request for issuance of a defense attorney certificate, must promptly study and compare with relevant legal provisions to determine whether the conditions for issuing a defense attorney certificate are met (with particular attention to the provisions of Clauses 2 and 3 of Article 56 of the Criminal Procedure Code). Within three (3) days (or within twenty-four (24) hours in cases of temporary detention), from the date of receipt of all valid documents as stipulated in Clause 1 of this Article, the Investigative Agency must examine and issue the defense attorney certificate so that they may perform their defense duties; if refusing to issue the defense attorney certificate, a written document stating the reasons for refusal must be provided.

4. Handing over and receiving the defense attorney certificate or the document refusing to issue the defense attorney certificate:

a) In cases where the person requesting the issuance of the defense attorney certificate arrives at the Investigative Agency's office as scheduled on the receipt document specified in Point b, Clause 2 of this Article, the Investigator or the assigned staff member shall hand over the defense attorney certificate (or the document refusing to issue the defense attorney certificate) to them and must prepare a handover record.

b) In cases where the person requesting the issuance of the defense attorney certificate does not arrive at the Investigative Agency's office as scheduled on the receipt document specified in Point b, Clause 2 of this Article, the Investigative Agency shall send the defense attorney certificate (or the document refusing to issue the defense attorney certificate) to them via registered mail or express delivery.

Article 6. Procedures for Issuing Defense Attorney Certificates for People's Defense Counselors and Legal Representatives of Detained Persons and Suspects

1. A People's Defense Counselor requesting the issuance of a defense attorney certificate and participating in proceedings must have the following documents:

a) Identity card (certified copy);

b) Introduction letter from the Vietnam Fatherland Front Committee or its affiliated organizations at the location where the detained person or suspect is a member;

c. Documents proving membership in the Vietnam Fatherland Front Committee or its affiliated organizations sending them;

d. Written request from the detained person or suspect for the Vietnam Fatherland Front Committee or its affiliated organizations at the location where the detained person or suspect is a member to appoint a defense counselor for them.

2. The legal representative of a detained person or suspect requesting the issuance of a defense attorney certificate and participating in proceedings must have the following documents:

a. Identity card (certified copy);

b. Request for defense of the detained person or suspect from the legal representative, confirmed by the local authority where the legal representative resides or by the competent authority regarding the relationship between the legal representative and the detained person or suspect;

3. The procedures for receiving, examining, and handing over the defense attorney certificate shall be carried out according to the provisions of Clauses 2, 3, and 4 of Article 5 of this Circular.

Article 7. Presence of Defense Counsel During Interrogation of Suspects and Taking Statements from Detained Persons

1. After issuing the defense attorney certificate, the Investigator must provide the defense counsel with all relevant procedural decisions concerning the person being defended and inform them of the contact details of the Investigative Agency and the Investigator for communication purposes when notifying about the time and place of taking statements from detained persons and interrogating suspects.

2. The Investigator must notify the defense counsel about the time and place of taking statements from detained persons and interrogating suspects at least twenty-four (24) hours in advance; in cases where the defense counsel is far away, notification may be made forty-eight (48) hours in advance; in cases where it is impossible to postpone the taking of statements from detained persons and interrogating suspects, the Investigator shall proceed with these actions and then notify the defense counsel.

3. The Investigator must conduct all procedures in accordance with the law before the defense counsel is present during the taking of statements from detained persons and interrogating suspects (ensuring that the defense counsel does not use telephones or recording devices); explain the rights and obligations of the defense counsel when present during the taking of statements from detained persons and interrogating suspects. When taking statements from detained persons and interrogating suspects, the Investigator and the defense counsel must comply with the provisions of Point a, Clause 2 of Article 58 of the Criminal Procedure Code, internal regulations of the Detention Center, and other relevant legal provisions. If the defense counsel violates the law, the statement-taking and interrogation must be immediately stopped, a record made of this, and reported to the Head or Deputy Head of the Investigative Agency for handling.

When taking statements from detained persons and interrogating suspects, if the Investigator agrees to allow the defense counsel to question the detained person or suspect, the questions of the defense counsel and the responses of the detained person or suspect must be recorded in the statement-taking record or the interrogation record. At the end of the statement-taking or interrogation, the Investigator must read aloud or provide the defense counsel with the statement-taking record or interrogation record to read; after confirming the accuracy of the questions and answers, the Investigator must request the defense counsel to sign the record. If the record does not fully or accurately reflect the questions and answers, the defense counsel has the right to request corrections, additions, or to note their comments before signing the record.

4. When requested by the defense counsel, the Investigator must confirm the actual working time of the defense counsel participating in the proceedings during the investigation process.

Article 8. Changing Investigators, Appraisers, Interpreters at the Request of Defense Counsel

1. When defense counsel submits a written request to change an Investigator, the Investigation Agency shall accept the document for processing. If there is evidence indicating one of the cases prescribed in Article 42 of the Criminal Procedure Code or Point b Clause 1 Article 44 of the Criminal Procedure Code, the Head of the Investigation Agency shall decide to change the Investigator; if the Investigator is the Head of the Investigation Agency, the case file shall be transferred to the higher-level Investigation Agency for investigation, if the Head of the central Investigation Agency needs to be replaced or must refuse to proceed with the prosecution, then the leader of the Ministry of Public Security shall decide that a Deputy Head of the Investigation Agency shall conduct the prosecution of the case and notify the defense counsel. In the absence of legal grounds for changing the Investigator, the Head of the Investigation Agency shall refuse the change and notify the defense counsel in writing, specifying the reasons for refusal.

2. When defense counsel submits a written request to change an Appraiser or Interpreter, the Investigation Agency shall accept the document for processing. If there is evidence indicating one of the cases prescribed in Clause 4 Article 60 or Clause 3 Article 61 of the Criminal Procedure Code, the Investigation Agency shall decide to change the Appraiser or Interpreter and notify the defense counsel. In the absence of legal grounds for changing the Appraiser or Interpreter, the Investigation Agency shall refuse the change and notify the defense counsel in writing, specifying the reasons for refusal.

Article 9. Defense Counsel Collecting Documents, Objects, Circumstances Related to Defense

1. The Investigation Agency and Investigators shall facilitate conditions for defense counsel to collect documents, objects, circumstances related to defense from persons under temporary detention, suspects, relatives of these persons, or from agencies, organizations, individuals upon the request of persons under temporary detention or suspects, provided that such information does not involve state secrets or work secrets. If it is discovered that defense counsel collects documents, objects, circumstances related to defense involving state secrets or work secrets, or discloses investigative secrets, the Investigation Agency and Investigators shall take measures to prevent the violation by defense counsel; depending on the nature and severity of the violation, appropriate measures shall be taken or reported to the competent authority for handling according to the law. If the Investigation Agency revokes the certificate of defense counsel, it must notify the management organization of defense counsel in writing and specify the reasons for revocation.

2. When defense counsel hands over collected documents, objects related to defense to the Investigation Agency, the Investigator shall prepare a receipt and include them in the case file. If defense counsel makes a request, and if the Investigator deems the request relevant to the defense, the Investigator shall prepare a record acknowledging the request made by the defense counsel.

Article 10. Defense Counsel Meeting Persons Under Temporary Detention, Suspects Being Temporarily Detained

1. When defense counsel submits a written request to the Investigation Agency to meet persons under temporary detention or suspects being temporarily detained, the Investigation Agency shall process the necessary procedures according to the law to allow the meeting; if the request is refused, the Investigation Agency must notify the defense counsel in writing and specify the reasons for refusal.

2. Before allowing defense counsel to meet persons under temporary detention or suspects being temporarily detained, the Investigator shall clearly explain the rights and obligations of defense counsel as stipulated in Article 58 of the Criminal Procedure Code; cooperate with the Director of the Detention House, Warden of the Detention Center to inform the defense counsel of the rules and regulations of the Detention House, Detention Center, and require strict compliance. During the meeting between defense counsel and persons under temporary detention or suspects being temporarily detained, the Investigator shall coordinate with staff of the Detention House to ensure compliance with the rights and obligations of defense counsel. If violations of the law by defense counsel are detected, the meeting shall be immediately stopped, a report prepared, and submitted to the Head or Deputy Head of the Investigation Agency for handling.

Article 11. Implementation of the rights of the accused and defense counsel after the conclusion of the investigation of the case

1. Within two (2) days from the date of issuing the investigative conclusion, the Investigative Agency must send the investigative conclusion proposing prosecution or the decision to terminate the investigation to the accused and defense counsel.

2. After the conclusion of the investigation, if the defense counsel requests to read, record, and copy documents related to the defense in the case file, the Investigative Agency must facilitate the defense counsel's implementation of this request. The investigator must compile all relevant documents in the case file into a separate file for the defense; in cases where the defense counsel reads and records these documents, the investigator arranges for the defense counsel to read and record them at the working room within the premises of the Investigative Agency. During the process of reading and recording the documents, the investigator must closely monitor to prevent the defense counsel from erasing, altering, damaging, tearing, changing, substituting, or removing the documents. If the defense counsel requests to copy these documents, the investigator directly copies (using a photocopier) the documents and provides them to the defense counsel. The reading, recording, or copying of documents related to the defense in the case file by the defense counsel must be documented in a record; the documents handed over to the defense counsel must be accompanied by a list of the documents.

Article 12. Funding Assurance

The costs of sending letters requesting assistance from defense counsel for persons under temporary detention or accused under temporary imprisonment through guaranteed mail or express delivery, and the costs of copying documents in the case file for the defense counsel shall be covered from the investigation budget.

The management and use of funds serving the activities mentioned above shall be carried out in accordance with the regulations on the management and use of investigation funds issued together with Decision No. 1443/2008/QĐ-BCA(V22) dated August 28, 2008, of the Minister of Public Security.

Article 13. Effectiveness of the Circular

This Circular takes effect from December 25, 2011.

Article 14. Responsibility for implementation

1. Directors of General Departments, Heads of Units under the Ministry, Provincial Police Chiefs, Chief Directors of Fire Prevention and Control Services, and Heads of Investigation Agencies at various levels in the People's Public Security Forces are responsible for implementing and fully disseminating the contents of this Circular to investigators, criminal investigation officers, and personnel involved in custody and detention work.

2. The Second General Department of Security and the General Department of Criminal Police are responsible for coordinating with relevant units to monitor, inspect, and guide the implementation of this Circular. In the course of implementing the Circular, if there are any difficulties, local public security units shall report to the Ministry (through the Legal Affairs Department, the Second General Department of Security, and the General Department of Criminal Police) for timely guidance.