Lawyers are people who help accused and litigants in applying the law to protect the interests of their clients. Currently, the role of lawyers is increasingly enhanced and becomes more equal than that of the prosecuting agency and the accuser. This is reflected in the principle of guaranteeing trial as stipulated in the Criminal Procedure Code. So about the matter “Rights of lawyers in criminal proceedings in Vietnam”. Let’s find out with LSX in the article below.
Legal grounds
- Criminal Procedure Code 2015
- Law on Lawyers 2006 amended and supplemented in 2012
Who is a lawyer?
According to Article 2 of the 2006 Law on Lawyers, amended and supplemented in 2012: A lawyer is a person who fully meets the standards and conditions for practice as prescribed in this Law, performs legal services at the request of individuals, agencies, organizations (hereinafter collectively referred to as customers).
Accordingly, a lawyer is a person licensed to practice law. At the request of the client, the lawyer applies the provisions of the law to protect the interests of the client. Lawyers often have obligations associated with their field of activity such as: consulting and giving legal advice; to study and collect evidences and evidences to compile documents in service of cases and disputes; consulting contract drafting; consulting in buying and selling transactions; perform defense and represent the client in court proceedings.
According to the nature of the job, the lawyer will take on two roles: a consulting lawyer and a litigation lawyer. Counseling attorneys will usually provide legal advice to clients. As for the litigation attorney, the lawyer will be the representative for the client, participating in the trial to defend, argue, and protect the rights and interests of the client.
With these functions, a lawyer’s professional activities contribute to the protection of justice, the freedoms and democracy of citizens, the legitimate rights and interests of individuals, agencies and organizations, and economic development – society, building a socialist Vietnam under the rule of law, a democratic, just and civilized society.
Rights of lawyers in criminal proceedings in Vietnam
According to Article 21 of the Law on Lawyers, lawyers have the following general rights:
“1. Lawyers have the following rights:
a) Having the right to practice law guaranteed by law in accordance with this Law and relevant laws;
b) Representing clients in accordance with the law;
c) To practice law, to choose the form of law practice and the form of organization of law practice according to the provisions of this Law;
d) Practicing law throughout the territory of Vietnam;
d) Practicing law abroad;
e) Other rights as prescribed by this Law.”
Lawyers in criminal law will participate as litigation attorneys. They can be defenders of the legitimate rights and interests of the denounced person, accused person, victim and litigants of the case. Or it can also be an advocate for the accused, the accused, the accused. With each position, attorneys will have different rights and obligations. As follows:
Advocate
Defense counsel means a person who is appointed by an accused person or a competent procedure-conducting agency and receives the registration of defense by a competent procedure-conducting agency or person. (Clause 1, Article 72 of Criminal Procedure Code 2015)
Lawyers can be defense advocates. As defense counsels, lawyers have the following rights under Article 73 of the Criminal Procedure Code:
a) Meeting and questioning the accused;
b) Being present when taking testimonies of arrested or detained persons, when interrogating the accused, and if the person competent to conduct the testimonies or interrogation agrees, may question the arrested person, the person held in custody, accused. After each time of taking testimonies or interrogation of competent persons, the defense counsel may question the arrested person, the person held in custody or the accused;
c) To be present in confrontation, voice recognition, and other investigative activities as prescribed by this Code;
d) Be notified in advance by the competent procedure-conducting agency of the time and place for taking testimonies and interrogation and the time and place for conducting other investigative activities according to the provisions of this Code;
đ) View minutes of procedural activities with his/her participation, procedural decisions related to the person he/she is defending;
e) Request for replacement of competent procedure-conducting persons, experts, property appraisers, interpreters, translators; propose change or cancellation of preventive and coercive measures;
g) Request to conduct procedural activities in accordance with the provisions of this Code; request to summon witnesses, other procedure participants and competent procedure-conducting persons;
h) Collect and present evidences, documents, objects and requests;
i) Examine, evaluate and present opinions on relevant evidences, documents and objects and request the competent procedure-conducting person to examine and evaluate;
k) Request the competent procedure-conducting agency to collect evidences, conduct additional assessment, re-examination and re-valuation of assets;
l) Read, take notes and copy documents in the case file related to the defense since the end of the investigation;
m) Participating in questioning and arguing at court sessions;
n) Complaints about procedural decisions and acts of procedure-conducting agencies or persons;
o) Appeal against the Court’s judgment or decision if the defendant is under 18 years of age, a person with mental or physical defects as prescribed by this Code.
Defendant of the legitimate rights and interests of the denounced person or the person proposed for prosecution
The person who defends the legitimate rights and interests of the denounced person or the person proposed for prosecution is the person whom the denounced person or the petitioned person asks for prosecution thanks to protect their legitimate rights and interests.
According to Point a, Clause 2, Article 83 of the Criminal Procedure Code, the defender of the legitimate rights and interests of the denounced person or the person proposed for prosecution may be:
“a) Attorney;”
Accordingly, when a lawyer is the defender of the legitimate rights and interests of the denounced person or the person proposed for prosecution, he/she has the following rights:
a) Present evidences, documents, objects or requests;
b) Examine, evaluate and present opinions on relevant evidences, documents and objects and request the competent procedure-conducting person to examine and evaluate;
c) To be present when taking testimonies of the denounced person or the person proposed for prosecution and, if agreed by the investigator or the procurator, to question the denounced person or the person proposed for prosecution. After each time of taking a competent person’s testimony, the defender of the legitimate rights and interests of the denounced person or the person proposed for prosecution has the right to question the denounced person or the person proposed for prosecution;
d) Being present when confronting, identifying and recognizing the voice of the denounced person or the person proposed for prosecution;
d) Complaints about procedural decisions and acts of agencies or persons competent to conduct procedures.
Defendant of the legitimate rights and interests of the victim, the litigant
The person who defends the legitimate rights and interests of the victim, the litigant who is the victim, the litigant requesting the protection of legitimate rights and interests.
When lawyers are the defenders of legitimate rights and interests of victims and litigants, they have the following rights:
a) Present evidences, documents, objects or requests;
b) Examine, evaluate and present opinions on relevant evidences, documents and objects and request the competent procedure-conducting person to examine and evaluate;
c) Request for assessment and valuation of assets;
d) To be present when competent procedural authorities take testimonies, confront, identify and recognize the voice of the person they are protecting; read, take notes and copy documents in case files related to the protection of interests of victims and litigants after the investigation ends;
d) Participating in questioning and arguing at court sessions; see the minutes of the trial;
e) Complaints about procedural decisions and acts of procedure-conducting agencies or persons;
g) Request for replacement of competent procedure-conducting persons, experts, property appraisers, interpreters, translators;
h) To appeal against the part of the court’s judgment or decision related to the rights and obligations of the person he or she is protecting who is under 18 years old, who has mental or physical defects.
What is the procedure to register a defense counsel with a lawyer?
A lawyer can act as a defense for an accused person through the defense registration procedure.
According to Article 78 of the Criminal Procedure Code, the registration of defense counsels is as follows:
– In all cases of participating in the proceedings, the defense counsel must register the defense.
Pursuant to Clause 1, Article 12 of Joint Circular No. 10/2018/TTLT-BTP-BCA-BQP-BTC-TANDTC-VKSNDTC, the registration of defense counsels with lawyers is done as follows:
– The lawyer of the legal aid participating organization shall present his/her lawyer’s card enclosed with a certified true copy and the document appointing a lawyer of the organization participating in legal aid where such lawyer practices and works;
– Within 24 hours from the date of receipt of a full lawyer’s card together with a certified true copy and a document appointing a lawyer of the organization participating in legal aid where such lawyer practices or works, the competent authority shall: The right to conduct proceedings is responsible for checking the papers, if it is found that it is not in the case of refusal to register for the defense, it shall enter the registration book of the defense and immediately send a written notice to the defense counsel to the assistance-providing organization. legal aid providers and save documents related to the registration of defense in the case file; If it is found that the conditions are not met, the application for defense shall be refused.
In case a lawyer does not directly present his/her lawyer’s card, enclosed with a certified true copy and a document appointing a lawyer from the legal aid organization where he/she practices or works to register for defense, they must send to the competent procedure-conducting agency a certified copy of the lawyer’s card and the document appointing a legal aid provider of the legal aid-providing organization.
– The written notice of the defense counsel is valid for use throughout the proceedings, except for the following cases:
a) The accused refuses or requests to change the defense counsel;
b) The representative or relative of the accused person specified at Point b, Clause 1, Article 76 of this Code refuses or proposes to change the defense counsel.
Refuse, cancel the registration of defense counsel?
In case of refusal to register for defense:
According to Clause 5, Article 78 of the Criminal Procedure Code:
The agency competent to conduct procedures shall refuse the registration of defense in one of the following cases:
– When they are not allowed to act as defense counsels, including:
• The person who conducted the proceedings for that case; relatives of the person who has been or is conducting the legal proceedings on that case;
• Persons participating in that case as a witness, expert, property appraiser, interpreter, translator;
• Persons being examined for penal liability, convicts who have not yet had their criminal records remitted, persons being applied with administrative handling measures and sent to compulsory detoxification establishments or compulsory education establishments.
– The accused person in the case of appointing a defense counsel refuses a defense counsel.
Case of cancellation of registration of defense
According to Clause 7, Article 78 of the Criminal Procedure Code, the agency competent to conduct proceedings shall cancel the registration of defense and notify the defense counsel or detention facility in one of the following cases:
a) When detecting that the defense counsels are not allowed to act as defense counsels as above;
b) Violating the law when conducting defense.
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Frequently asked questions
According to Clause 4, Article 84 of the Criminal Procedure Code:
“4. The defense counsels of the legitimate rights and interests of the victims and involved parties have the obligations:
a) Using measures prescribed by law to contribute to clarifying the objective truth of the case;
b) Helping victims and involved parties in legal matters in order to protect their legitimate rights and interests.”
According to Article 82 of the Criminal Procedure Code, the right to request reading, recording and copying of documents in the case file is as follows:
After finishing the investigation, if there is a request to read, take notes or copy documents in the case file related to the defense, the agency competent to conduct procedures shall arrange the time, a place for defense counsels to read, take notes and copy documents in the case file.
After reading, taking notes and copying documents, the defense must hand over the case file in its original state to the agency that provided the file. If they lose, misplace or damage documents and case files, they shall, depending on the nature and seriousness of their violations, be handled in accordance with law.”
Lawyers practice in the following areas:
Participating in legal proceedings as a defense counsel for persons held in custody, accused or defendants or as defenders of interests of victims, civil plaintiffs, civil defendants and persons with interests related obligations in criminal cases.
Participating in legal proceedings as representatives or defenders of legitimate rights and interests of plaintiffs, defendants, persons with related interests and obligations in civil dispute cases, marriage and family, business, commerce, labor, administration, civil claims, marriage and family, business, commerce, labor and other cases and affairs as prescribed by law the law.
Provide legal advice.
Representing outside proceedings for clients to perform law-related work.
To perform other legal services in accordance with the Law on Lawyers.
Conclusion: So the above is Rights of lawyers in criminal proceedings in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
