POLICE

No: 70/2011 / TT-BCA

SOCIALIST REPUBLIC OF VIETNAM

Independence – Freedom – Happiness

CIRCULARS

Detailed provisions on the implementation of the provisions of the Criminal Procedure Code related

ensuring the right of defense in the stage of criminal investigation

____________________________

Pursuant to the November 26, 2003 Criminal Procedure Code;

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

The Minister of Public Security shall provide for the guarantee of the right to defense of detainees and defendants; The rights of defense counsels to participate in legal proceedings during the stage of criminal investigation are as follows:

Thing 1. Scope of regulation

This Circular details the implementation of provisions of the 2003 Criminal Procedure Code relating to ensuring the right to defense of detainees and defendants; the rights of defense counsels in the stage of investigation of criminal cases are handled by the investigating bodies in the People’s Public Security Forces.

Ensuring the right of defense of persons held in custody or defendants under the provisions of the Law on Legal Aid is done in accordance with Joint Circular No. 10/2007 / TTLT-BTP-BCA-BQP-BTC-VKSNDTC-TANDTC dated December 28, 2007 of 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 guide the application of a number of provisions on legal aid in the proceedings.

Thing 2. Subjects of application

This Circular applies to investigation authorities, heads, deputy heads of investigation authorities, investigators, and officers assigned to perform some activities of investigation, supervisors of detention camps, heads of temporary houses. custody and staff of detention centers and custody houses in the People’s Public Security Forces; law-practicing organizations, lawyers; detainees, suspects; organizations and individuals involved in defense activities during the stage of investigation of criminal cases handled by the investigating bodies in the People’s Public Security Forces.

Thing 3. Principles of ensuring the right to defense in the stage of criminal investigation

1. Compliance with the provisions of the law.

2. To respect and protect the rights of the detainees or defendants to defend or ask others to defend; the right of an advocate.

3. Ensuring impartiality and objectivity in defense activities.

Thing 4. Explain the right to defend themselves or ask others to defend and carry out the procedure for having a defense counsel for the person detained or accused

1. When handing over custody decisions to persons held in temporary custody The decisions to prosecute defendants to defendants, investigators must read and explain to them clearly the rights and obligations of persons held in custody and defendants according to the Regulation. to decide in Articles 48 and 49 of the Criminal Procedure Code and make minutes of delivery and receipt of the Decision. The minutes must clearly state opinions of the person held in custody or the accused about whether to ask for an defense or not. If the person held in custody or the accused is in detention needs an advocate, the following actions are required:

a) In case the person held in custody or the accused being held in detention is a member of the Vietnam Fatherland Front Committee or the Front’s member organizations request the organization to which they are a member to appoint defense For them, investigators must write down the opinions of the persons held in custody or defendants in the minutes and guide them to write their proposals in writing. Within 24 (twenty four) hours after the person held in custody or temporary detention gives a written request, the investigation authority shall send a written request to nominate their defense counsel to the organization in which the person is detainees, the accused are members by registered mail or courier;

b) In cases where the person held in custody or the accused is in detention thanks to the defense counsel to be their legal representative, the investigator shall guide them to write a written request, clearly stating the full name and age in a written document. , address of legal representative. Within 24 (twenty four) hours from the time the person held in custody or the defendant makes a written request, the investigation authority shall send a written request of the person held in custody or accused to the representative. lawfully by which the detainee or the suspect asks for defense by registered mail or courier;

c) If the person held in custody or the accused is in detention thanks to his or her lawyer, the investigator shall guide them to write a written request for a lawyer, if he / she requests to name the defense lawyer (with full name, (clear address), within 24 (twenty four) hours, the Investigation Agency is responsible for sending a written request to the lawyer of the person in custody or the accused to the lawyer they ask to defend by registered mail. or courier; in case the person held in custody or the accused writes a paper to ask a relative (with full name and address) to contact and ask a lawyer to defend them, within 24 (twenty four) hours from the time the victim is In custody, the accused has a written request to his or her relatives, the investigation agency shall send such paper to the relatives of the detainee or suspect by registered mail or courier.

2. In cases where the person held in custody or the accused has not yet asked for an defense counsel, the investigator must, at the first time, take testimony of the person held in custody or interrogate the accused, the investigator must clearly ask the person held in custody or the accused has asked a defense counsel. corrected and must write their opinions in the minutes. If the person held in custody or the accused is in temporary detention asks an advocate, the provisions in Clause 1 of this Article shall apply.

3. In cases where the accused commits a crime and the penalty bracket for such crime is the highest level, it is specified in the Penal Code; the accused is a minor or has a mental or physical defect if, after explaining and notifying the accused, their legal representative of their right to seek a defense counsel they refuse, The investigating agency must request in writing the Bar Association in the locality of the investigating agency that is accepting the case to appoint an advocate for them or request the Vietnam Fatherland Front Committee, a member organization of the Front. appoint an advocate for its members; in cases where the Bar Association, the Vietnam Fatherland Front Committee or the Front’s member organizations have appointed defense counsels but the accused or their legal representatives propose to change or reject the defense counsel, then Article The inspector must make a written record clearly stating their opinions.

4. Where the person held in custody or the accused commits a crime of infringing upon national security, the head of the Procuracy has issued a decision to allow the defense counsel to participate in the procedure from the end of the investigation, the investigator must notify to let them know the decisions of the Procurator General and explain to them the rights and obligations of the detainees and defendants according to the provisions of Articles 48 and 49 of the Criminal Procedure Code.

Thing 5. Procedures for the granting of defense counsel’s certificates for lawyers

1. Lawyers applying for certificates of defense counsels and participating in procedures must have all of the following papers:

a) Lawyer card (an authentic copy);

b) A written request for a lawyer of the person held in custody or accused; a written request for a lawyer of a relative of the person held in custody or the accused (in case the person held in custody or the accused is in detention has a written request for a relative to ask for a lawyer to defend); or a written request for a lawyer of the legal representative of the person held in custody or the accused (for the detainee, the accused is a minor, the person with mental or physical defects);

c) A letter of recommendation of the law-practicing organization where that lawyer practices law or the letter of recommendation of the bar association (for the case of practicing as an individual);

d / A bar association’s assignment document, for the case specified in Clause 3, Article 4 of this Circular.

2. To receive dossiers of application for defense counsel certificates:

a) If the application for the certificate of defense counsel is sent to the investigating authority by post or dispatch, the investigating authority shall stamp the incoming dispatch when receiving these papers. hour, day, month and year to receive and immediately deliver to investigators and assigned cadres; Investigators and officers assigned to immediately check the received papers, if found missing or incorrect procedures, notify (by registered mail or courier) to the person requesting the certificate of defense know for amendments and supplements;

b) In case the requester for a certificate of defense or a person belonging to a law-practicing organization where a lawyer applying for a certificate of defense counsel works directly to the investigating agency applying for the certificate of person To make excuses and submit relevant papers, investigators and assigned officials shall receive and inspect them. If they find that the procedures are missing or the procedures are not correct, they shall immediately guide them to amend and supplement. If all the papers specified in Clause 1 of this Article are met, write a receipt of the receipt of the complete application file for the defense counsel’s certificate, clearly indicating the time of arrival to receive the defense counsel’s certificate. the refusal to issue certificates of defense counsel;

c) In case it is necessary to keep investigation confidentiality of criminal cases of infringing national security, the investigation authority shall request the Head of the Procuracy of the same level to decide to allow defense counsels to participate in the proceedings from at the end of the investigation; refusing to receive papers related to the defense and explaining to the lawyer the request for a defense counsel certificate as provided for in Clause 1, Article 58 of the Criminal Procedure Code;

d) The time for starting to consider and issue a defense counsel’s certificate shall be counted from the time that investigators and assigned officials fully receive all papers related to the defense.

3. Consider issuing a certificate of defense counsel:

Assigned investigators and officers, after receiving all papers related to the application for the certificate of defense counsels, must urgently study and compare them with relevant law provisions to determine the whether or not to qualify for the certificate of defense counsel (in which attention should be paid to the provisions of Clause 2.3, Article 56 of the Criminal Procedure Code). Within 03 (three) days (or within 24 (twenty four) hours in case of detention) from the date of receipt of all valid papers as prescribed in Clause 1 of this Article, the The inspector must consider and issue a certificate of defense counsel so that they can perform the defense.If they refuse to issue the certificate of defense counsel, there must be a document stating the reason for refusing to issue the certificate cure.

4. Delivery of defense counsel’s certificates or written refusal to issue defense counsel’s certificates:

a) If the requester for a certificate of defense counsel arrives at the office of the investigation authority by appointment specified in the receipt specified at Point b, Clause 2 of this Article, the investigator or the officer assigned to hand over the certificate the defense counsel (or a written refusal to issue the defense counsel’s certificate) to them and must make a record of delivery;

b) If the requester for a certificate of defense counsel fails to come to the office of the investigation authority by appointment specified in the receipt specified at Point b, Clause 2 of this Article, the investigating authority shall send the certificate of defense counsel ( or written refusal to certify defense counsels) by registered mail or courier.

Thing 6. Procedures for granting defense counsel’s certificates to people’s defense counsels and legal representatives of persons held in custody or defendants

1. People’s defense advocates applying for certificates of defense counsels and participating in procedures must have all of the following papers:

a) Identity card (an authentic copy);

b) Letter of recommendation of the Vietnam Fatherland Front Committee, the Front’s member organization where the detainee or the accused is a member;

c. Papers proving that he / she is a member of the Vietnam Fatherland Front Committee, sent by the Front’s member organization;

d. Documents of the person held in custody or the accused shall propose to the Vietnam Fatherland Front Committee, a member organization of the Front where the person held in custody or the accused is a member to appoint a defense officer for them.

2. The legal representatives of persons held in custody or accused persons applying for certificates of defense counsels and participating in procedures must have all of the following papers:

a) Identity card (an authentic copy);

b. The legal representative’s written request to defend a detained or accused person, certified by the local authority where such person resides or certified by a competent authority on the relationship between the appropriate representative. legal against persons detained or accused;

3. The receipt, consideration for the grant and delivery of defense counsel’s certificates comply with Clauses 2,3,4, Article 5 of this Circular.

Thing 7. The defense counsels are present when interrogating the accused and taking testimony of the detainee

1. After granting certificates of defense counsels, investigators must hand over procedural decisions related to the defense counsels to the defense counsels and notify the methods of communication of investigation authorities and investigators to the defense counsel. they need to notify the time and place of taking testimony of the detainee or interrogating the accused when they need to.

2. Investigators must notify the time and place of taking testimonies of the persons held in custody or interrogation of the accused to the defense counsel 24 (twenty four) hours in advance, in case the remote defense counsel can notify 48 (forty eight) hours in advance, in case it is impossible to delay taking testimony of the person held in custody or interrogation of the accused, the Investigator shall take testimony, interrogate and then notify anyone. cure know.

3. Investigators must carry out the procedures prescribed by law before an defense counsel is present when taking testimony of the person held in custody or interrogating the accused (ensuring that the defense counsel cannot use the telephone, recording and video recording equipment …); to explain the rights and obligations of the defense counsels when present so that investigators can take testimony of the person held in custody or interrogate the accused. Investigators and defense counsels shall, when taking testimony of persons held in custody or interrogation of suspects, must comply with the provisions of Point a, Clause 2, Article 58 of the Criminal Procedure Code, the rules of custody houses and detention camps. and other relevant legal regulations. If the defense counsel is found to have violated the law, it is necessary to immediately stop taking testimonies, interrogating and making a report on this matter and report it to the head or deputy head of the investigation agency for handling.

When taking testimonies of the person held in custody or interrogation of the accused, if investigators agree to allow the defense counsel to question the detainee or the accused, the defense counsel’s questions and answers of the detainees must be recorded. , the suspect enters in the record taking testimony of the person held in custody, the record of interrogation of the accused. At the end of the questioning and interrogation, investigators must re-read or give the defense counsel to re-read the testimony minutes, the interrogation minutes, after confirming the correct content of the question and answer, they will love ask the defense to sign the record. In case the record is incomplete or inaccurate with the question and answer, the defense counsels may request amendments, supplements or write down their opinions before signing the minutes.

4. At the request of the defense counsels, investigators must certify the actual working hours of the defense counsels participating in the proceedings during the investigation of the case.

Thing 8. To change investigators, expert witnesses and interpreters at the request of the defense counsels

1. When the defense counsels request in writing to change investigators, the investigating bodies shall receive the documents for settlement. If there is a ground in one of the cases specified 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; in case investigators are heads of investigation agencies, the case files shall be transferred to the immediate superior investigation agency for investigation, if the head of the central investigating agency is changed or must be refused. to conduct legal proceedings, the leadership of the Ministry of Public Security shall decide to let a deputy head of the investigation agency conduct the proceedings against the case and notify the defense counsel thereof.

2. When the defense counsels request in writing to change the expert or interpreter, the investigating agency shall receive the written request for settlement. If there are grounds in one of the cases specified in Clause 4, Article 60, and Clause 3, Article 61 of the Criminal Procedure Code, the investigating agency shall decide to change the expert or interpreter and notify such cure know. In case the request has no legal basis, the investigation authority shall refuse to change the expert or interpreter and notify the defense counsel in writing, clearly stating the reason for refusal.

Thing 9. The defense counsel collects documents, objects and details related to the defense

1. Investigation agencies and investigators create favorable conditions for defense counsels to collect documents, objects and details related to the defense from persons held in custody, the accused or their relatives. or from agencies, organizations or individuals at the request of the persons held in custody or the accused if they do not belong to state secrets or work secrets. If it is discovered that the defense counsel has collected documents, objects and details related to the defense of State secrets or working secrets or disclosed investigation secrets, investigation authorities and investigators must take measures to prevent the defense counsel’s violation; Depending on the nature and severity of the act of violation, there shall be solutions to handle or report to competent authorities for handling according to the provisions of law.

2. If the defense counsels collect documents and objects related to the defense and hand them over to the investigation agency, investigators shall make a record of receipt and record them in the case file. If the defense counsel makes a request and deems that the request is related to the defense, the investigator shall make a written record of the defense counsel’s request.

Thing 10. The defense counsel meets the person held in custody or the accused is being held in detention

1. When the defense counsel sends a written request to the investigation agency to meet the person held in custody or the suspect being held in detention, the investigating agency shall carry out the procedures as prescribed by law for the defense counsel to meet the victim custody, the suspect is being held in custody; If you refuse to meet, you must notify the defense counsels in writing and clearly state the reasons for refusing.

2. Before allowing defense counsels to meet persons held in custody or defendants in detention, investigators shall clearly explain the defense counsel’s rights and obligations prescribed in Article 58 of the Criminal Procedure Code; coordinate with the Head of the Detention House and the Supervisor of the Detention Center in disseminating to the defense counsel the rules and regulations of the custody house and detention camp and request the defense counsel to strictly observe. During the course of the defense counsel meeting the person held in custody or the accused being held in detention, investigators shall coordinate with officials and soldiers of the custody house and the accused according to the rules and regulations of the custody house and detention camp. to ensure compliance with the rights and obligations of defense counsels. In case defense counsels are found violating the provisions of law, the meeting of persons held in custody or suspects of defense counsels must immediately stop and make a report and report to the heads and deputy heads of the investigating body. physical.

Thing 11. To exercise the rights of the accused and the defense counsels after the investigation ends

1. Within 2 (two) days from the date of issuing the investigation conclusion, the investigating agency must send the investigation conclusion proposing the prosecution or the decision to suspend the investigation to the accused or defense counsel.

2. After the investigation ends, if the defense counsel requests to read, record and copy documents in the case files related to the defense, the investigating body must create favorable conditions for the person to the defense made this request. Investigators must consolidate the documents contained in the case file relating to the defense into a file; In case the defense counsel reads and takes notes of these documents, the investigator shall arrange for the defense counsel to read and take notes at the office of the investigation agency. During the course of the defense counsel’s reading and recording of documents, investigators must closely supervise, not allowing the defense counsel to erase, modify, damage, tear, alter, swap or take the documents. Where the defense counsel requests photocopying these documents Investigators directly copy (by photocopy) the document to the defense counsel. The reading, recording or copying of documents in the case files relating to the defense of the defense counsel must be recorded in writing, and the documents delivered to the defense counsel must contain a list of accompanying documents. according to the.

Thing 12. Funding guarantee

Expenses for sending official letters to defense counsels of persons held in custody or defendants being held in detention by registered mail or courier and expenses for copying documents in case files to defense counsels are covered from funding investigate.

The management and use of funds for the aforementioned activities comply with regulations on management and use of investigation funding in the People’s Public Security force issued together with Decision No. 1443/2008 / QD-BCA (V22) August 28, 2008 by Minister of Public Security.

Thing 13. Effect of the Circular

This Circular takes effect on December 25, 2011.

Thing 14. Responsibility for implementation

1. General Directors, Heads of units under the Ministry, Directors of Public Security of provinces and centrally-run cities, Directors of the Department of Fire Prevention and Fighting and Heads of Investigation Agencies at all levels in the Public Security Forces people shall be responsible for implementing and fully grasping this Circular’s content for investigators, officers and soldiers engaged in criminal investigation and detention.

2. The General Department of Security II, the General Department of Crime Prevention and Control Police shall coordinate with the concerned units in monitoring, examining and guiding the implementation of this Circular. In the course of implementing this Circular, if any problems arise, the police of units and localities shall report to the Ministry (through the Legal Department, General Department of Security II and the General Department of Crime Prevention and Control) for guidance. timely./.