Thông tư 70/2011/TT-BCA

CIRCULAR

DETAILING THE IMPLEMENTATION OF THE PROVISIONS OF THE CRIMINAL PROCEDURE CODE REGARDING THE GUARANTEE OF THE RIGHT TO DEFENSE AT THE STAGE OF CRIMINAL INVESTIGATION

Pursuant to the November 26, 2003 Criminal Procedure Code;

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

The Ministry of Public Security provides for the guarantee of the right to defense of persons in custody and the accused; and the rights of defense counsels when participating in criminal procedures at the stage of criminal investigation as follows:

Article 1. Scope of regulation

This Circular details the implementation of the provisions of the 2003 Criminal Procedure Code regarding the guarantee of the right to defense of persons in custody and the accused; and the rights of defense counsels at the stage of investigation of criminal cases accepted for settlement by investigative agencies of the People's Public Security force.

The guarantee of the right to defense of persons in custody and the accused under the Law on Legal Aid complies with Joint Circular No. 10/2007/TTLT-BTP-BCA-BQP-BTC-VKSNDTC-TANDTC of December 28, 2007, of the Ministry of Justice, the Ministry of Public Security, the Ministry of National Defense, the Ministry of Finance, the Supreme People's Procuracy and the Supreme People's Court, guiding the application of regulations on legal aid in proceedings.

Article 2. Subjects of application

This Circular applies to investigative agencies, heads and deputy heads of investigative agencies, investigators and persons assigned to perform some investigative activities, superintendents of detention camps, heads of custody houses, officers of detention camps and custody houses in the People's Public Security force; law firms and lawyers; persons in custody and the accused; organizations and individuals involved in defense activities at the stage of investigation of criminal cases accepted for settlement by investigative agencies of the People's Public Security force.

Article 3. Principles of guarantee of the right to defense at the stage of criminal investigation

1. Observance of law.

2. Respect for and protection of the right of persons in custody and the accused to defend themselves or ask other persons to defend them.

3. Guarantee of impartiality and objectiveness of defense activities.

Article 4. Explanation of the right of persons in custody or the accused to defend themselves or ask other persons to defend them and performance of procedures for asking persons to defend persons in custody or the accused

1. When delivering a custody decision to a person in custody or a decision on institution of criminal proceedings against an accused to such accused, investigators shall read and explain to such person the rights and obligations of persons in custody or the accused specified in Articles 48 and 49 of the Criminal Procedure Code and make a written record of decision delivery and receipt. Such a written record must clearly state the wish of the person in custody or the accused to ask or not to ask a defense counsel to defend him/her. If the person in custody or the accused in detention wishes to have a defense counsel, the following procedures shall be carried out:

a/ In case the person in custody or the accused in detention, who is a member of the Vietnam Fatherland Front Committee or a member organization of the Front, wishes to request the organization of which he/she is a member to assign a defense counsel for him/ her, the investigator shall record his/her wish in a written record and guide him/her to write such request. Within 24 (twenty-four) hours after a written request for a defense counsel is made by the person in custody or the accused, the investigative agency shall send such written request by registered mail or express mail service to the organization such person is a member;

b/ In case the person in custody or the accused in detention asks his/her lawful representative to act as his/her defense counsel, the investigator shall guide him/her in writing a request, clearly stating the full name, age and address of the lawful representative. Within 24 (twenty-four) hours after a written request for a defense counsel is made by the person in custody or the accused, the investigative agency shall send such written request by registered mail or express mail service to the lawful representative asked to act as a defense counsel;

c/ In case the person in custody or the accused in detention asks a lawyer to act as his/ her defense counsel, the investigator shall guide him/her to write such request. If such request clearly states the full name and address of the defense counsel, the investigative agency shall, within 24 (twenty-four) hours, send such written request by registered mail or express mail service to the lawyer asked to act as a defense counsel. In case the person in custody or the accused in detention writes a letter asking one of his/her relatives (clearly stating his/her full name and address) to contact and ask a lawyer to act as his/her defense counsel, the investigative agency shall, within 24 (twenty-four) hours after the letter is written by the requester, send such letter by registered mail or express mail service to the relative of the requester.

2. In case the person in custody or the accused has not yet asked for a defense counsel, at the first-time taking of statements of the person in custody or the first-time interrogation of the accused, the investigator shall clearly ask whether such person wishes to have a defense counsel and record his/her wish in a written record. If the person in custody or the accused in detention wishes to have a defense counsel, procedures shall be carried out under Clause 1 of this Article.

3. In case the accused has committed a crime punishable to death as specified in the Penal Code, or is a minor or a person with mental or physical defects, if he/she still refuses to have a defense counsel after he/she and his/her lawful representative have been explained and notified of the right to ask for a defense counsel, the investigative agency shall request in writing the bar association in the locality in which the investigative agency has accepted the case for settlement to appoint a defense counsel for him/ her, or request the Vietnam Fatherland Front Committee or a member organization of the Front to appoint a defense counsel for its member. In case the bar association, the Vietnam Fatherland Front Committee or a member organization of the Front has appointed a defense counsel but the accused or his/her lawful representative requests change of such defense counsel or refuses to have such defense counsel, the investigator shall make a written record clearly stating his/her wish. In case a person in custody, the accused or his/her lawful representative requests change of the defense counsel, the investigative agency shall request in writing the bar association to appoint another person to defend him/her or request in writing the Vietnam Fatherland Front Committee or a member organization of the Front to appoint another person to defend its member.

4. In case a person in custody or the accused has committed a crime which infringes upon the national security and the director of the procuracy has issued a decision allowing a defense counsel for such person to participate in the procedures from the time of investigation completion, the investigator shall notify such person of the procuracy director's decision and explain to him/her the rights and obligations of persons in custody and the accused under Articles 48 and 49 of the Criminal Procedure Code.

Article 5. Procedures for granting defense counsel certificates to lawyers

1. A lawyer who applies for a defense counsel certificate for his/her participation in the procedures must have all the following papers:

a/ A lawyer card (an authenticated copy);

b/ A written request for a lawyer made by a person in custody or the accused; a written request for a lawyer made by a relative of a person in custody or the accused in detention (in case such person asks his/her relatives to contact and hire a defense counsel); or a written request for a lawyer made by a lawful representative of a person in custody or the accused (in case such person is a minor or a person with mental or physical defects);

c/ A letter of introduction issued by the law firm in which he/she is practicing law or by the bar association (for freelance law practitioners);

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

2. Receipt of a dossier of application for a defense counsel certificate:

a/ In case the dossier of application for a defense counsel certificate is sent to the investigative agency by post or through the official letter channel, upon receiving it, the investigative agency shall append on the dossier an incoming-official letter stamp, clearly writing the time and date of receipt, and promptly deliver it to the investigator or the person assigned to conduct investigation, who shall immediately examine received papers. If finding that the received papers are insufficient or invalid, the investigator or the person assigned to conduct investigation shall notify (by registered mail or express mail service) such to the defense counsel certificate applicant for modification and supplementation;

b/ In case the defense counsel certificate applicant or a lawyer currently working in a law firm comes in person to the investigative agency for applying for a defense counsel certificate and submitting required papers, the investigator or the person assigned to conduct investigation shall receive and examine these papers. If finding that these papers are insufficient or invalid, he/she shall guide the applicant in modifying and supplementing these papers. If all the papers specified in Clause I of this Article are submitted, he/she shall write a receipt of the complete dossier of application for a defense counsel certificate, clearly stating the date on which the applicant can come to receive a defense counsel certificate, or issue a written reply of refusal to grant a defense counsel certificate;

c/ In case it is necessary to keep confidential investigations into a crime infringing upon the national security, the investigative agency shall request the same-level procuracy director to issue a decision on allowing a defense counsel to participate in the procedures from the time of investigation completion; and refuse to receive papers related to the defense and explain the confidentiality of the case to the lawyer applying for a defense counsel certificate under Clause 1, Article 58 of the Criminal Procedure Code;

d/ The time to start considering the grant of a defense counsel certificate is the time when the investigator or the person assigned to conduct investigation receives all required papers related to the defense.

3. Consideration of the grant of a defense counsel certificate:

After receiving all required papers for the grant of a defense counsel certificate, an investigator or a person assigned to conduct investigation shall promptly study relevant provisions of law for determining whether the conditions for granting a defense counsel certificate are satisfied (attention must be paid to the provisions of Clauses 2 and 3, Article 56 of the Criminal Procedure Code). Within three (3) days (or within 24 (twenty-four) hours for persons being held in custody) after receiving all valid papers specified in Clause 1 of this Article, the investigative agency shall consider and grant a defense counsel certificate for the defense counsel to perform the defense. If refusing to grant a defense counsel certificate, it shall reply in writing, clearly stating the reason.

4. Delivery of a defense counsel certificate or a written reply of refusal to grant a defense counsel certificate:

a/ In case a defense counsel certificate applicant comes in person to the investigative agency on the date stated in the receipt specified at Point b, Clause 2 of this Article, the investigator or the person assigned to conduct investigation shall deliver a defense counsel certificate (or a written reply of refusal to grant a defense counsel certificate) to him/her and make a written record of delivery and receipt;

b/ In case a defense counsel certificate applicant does not come in person to the investigative agency on the date stated in the receipt specified at Point b, Clause 2 of this Article, the investigative agency shall send a defense counsel certificate (or a written reply of refusal to grant a defense counsel certificate) to him/her by registered mail or express mail service.

Article 6. Procedures for granting defense counsel certificates to people's advocates or lawful representatives of persons in custody or the accused

1. A people's advocate who applies for a defense counsel certificate for his/her participation in the procedures must have all the following papers:

a/ His/her identity card (an authenticated copy);

b/ A letter of introduction issued by the Vietnam Fatherland Front Committee or a member organization of the Front of which the person in custody or the accused is a member;

c/ A paper proving that he/she is a member appointed by the Vietnam Fatherland Front Committee or a member organization of the Front to act as a defense counsel;

d/ A written request of the person in custody or the accused for appointment of a defense counsel by the Vietnam Fatherland Front Committee or a member organization of the Front of which such person is a member.

2. The lawful representative of a person in custody or the accused who applies for a defense counsel certificate for his/her participation in the procedures must have all the following papers:

a/ His/her identity card (an authenticated copy);

b/ A written request for a defense counsel for the person in custody or the accused, made by him/her and certified by the administration of the locality in which he/she resides or bearing a competent authority's certification of the relationship between him/her and the person in custody or the accused.

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

Article 7. Presence of defense counsels at the interrogation of the accused or the taking of statements of persons in custody

1. After a defense counsel certificate is granted, the investigator shall deliver procedural decisions related to the defended person to his/ her defense counsel and notify the latter of the method to be used by the investigative agency or the investigator for notifying the defense counsel of the time and place for taking statements of the person in custody or for interrogation of the accused.

2. The investigator shall issue 24-hour notices of the time and place for taking statements of the person in custody or for interrogation of the accused to the defense counsel. In case the defense counsel resides too far from such place, 48-hour notices may be issued. In case the taking of statements of the person in custody or the interrogation of the accused cannot be delayed, the investigator may conduct the statement taking or interrogation first and notify it to the defense counsel later.

3. The investigator shall carry out procedures specified by law before the defense counsel is present at the taking of statements of the person in custody or the interrogation of the accused (ensuring that the defense counsel does not use telephones, audio and video recorders, etc.); explain the rights and obligations of the defense counsel when the latter is present at the taking of statements of the person in custody or the interrogation of the accused. When taking statements of the person in custody or interrogating the accused, the investigator and the defense counsel shall comply with Point a. Clause 2, Article 58 of the Criminal Procedure Code, rules of the custody house or the detention camp and other relevant laws. If detecting that the defense counsel violates the law, the investigator shall immediately stop the statement taking or interrogation and make a minutes of violation and report it to the head or deputy head of the investigative agency for handling.

When taking statements of the person in custody or interrogating the accused, the investigator who has agreed to allow the defense counsel to question such person shall write down the defense counsel's questions and such person's answers in the statement-taking or interrogation minutes. Upon completing the statement taking or interrogation, the investigator shall read once again or let the defense counsel read such minutes and request the latter to sign it after checking and confirming the recorded questions and answers. The defense counsel may request modifications or supplementations to, or recording of their opinions in, the minutes if finding that his/her questions and his/her client's answers are not completely or correctly recorded.

4. When requested by the defense counsel, the investigator shall certify his/her actual working period when participating in the procedures at the stage of criminal investigation.

Article 8. Change of investigators, experts or interpreters at the request of defense counsels

1. When a defense counsel requests in writing the change of an investigator, the investigative agency shall receive the request for settlement. When there is a ground specified in Article 42 of the Criminal Procedure Code or at Point b, Clause 1, Article 44 of the Criminal Procedure Code, the head of the investigative agency shall decide to change the investigator. In case the investigator is the head of the investigative agency, the case file shall be transferred to the immediate superior investigative agency for investigation. If the head of the central-level investigative agency is changed or must refuse to conduct the procedures, the leadership of the Ministry of Public Security shall decide to appoint a deputy head of such investigative agency to conduct the procedures for the case and notify such to the defense counsel. In case the request for change of the investigator is not supported by any legal grounds, the head of the investigative agency shall refuse to change the investigator and notify the refusal in writing to the defense counsel, clearly stating the reason.

2. When the defense counsel requests in writing the change of an expert or interpreter, the investigative agency shall receive the request for settlement. When there is a ground specified in Clause 4, Article 60 or Clause 3, Article 61 of the Criminal Procedure Code, the investigative agency shall decide to change the expert or interpreter and notify the change to the defense counsel. In case the request is not supported by any legal grounds, the investigative agency shall refuse to change the expert or interpreter and notify the refusal in writing to the defense counsel, clearly stating the reason.

Article 9. Collection of defense-related documents, objects and circumstances by defense counsels

1. Investigative agencies and investigators shall create favorable conditions for defense counsels to collect defense-related documents, objects and circumstances from persons in custody, the accused or these persons' relatives or other agencies, organizations or persons at the request of persons in custody or the accused, provided such documents, objects and circumstances are not state or professiona1 secrets. If detecting that a defense counsel collects defense-related documents, objects and circumstances being state or professional secrets or leading to the disclosure of investigative secrets, the investigative agency or investigator shall take measures to stop such defense counsel's violation. Depending on the nature and severity of the violation, it/he/she shall take a handling measure or report it to a competent authority for handling under law. In case the investigative agency revokes a defense counsel certificate, it shall notify the revocation in writing to the organization, managing the defense counsel, clearly stating the reason for the revocation.

2. When the defense counsel hands over defense-related documents and objects he/she has collected to the investigative agency, the investigator shall make a written record of the receipt and include such documents and objects in the case file. In case the defense counsel makes a request, if finding such request related to the defense, the investigator shall record in writing such request.

Article 10. Meeting between defense counsels and persons in custody or the accused

1. When the defense counsel requests in writing the investigative agency to permit him/ her to meet the person in custody or the accused in detention, the investigative agency shall carry out procedures specified by law for the defense counsel to meet the person in custody or the accused in detention. In case of refusal to permit the meeting, the investigative agency shall notify it in writing to the defense counsel, clearly stating the reason.

2. Before permitting the defense counsel to meet the person in custody or the accused in detention, the investigator shall clearly explain the rights and obligations of defense counsels provided in Article 58 of the Criminal Procedure Code; and coordinate with the head of the custody house or the superintendent of the detention camp in informing the defense counsel of internal rules of the custody house or detention camp, and request the defense counsel to strictly observe these rules. The investigator shall coordinate with officers or soldiers of the custody house or the detention camp in supervising the meeting between the defense counsel and the person in custody or the accused in detention according to internal rules of the custody house or the detention camp in order to assure the defense counsel's compliance with regulations on his/her rights and obligations. If detecting that the defense counsel violates the regulations, the investigator shall immediately stop the meeting and make a minutes of the violation and report it to the head or deputy head of the investigative agency for handling.

Article 11. Exercise of the rights of the accused and defense counsels after the completion of criminal investigation

1. Within 2 (two) days after making a written report on investigation conclusion, the investigative agency shall send it together with the prosecution proposal or an investigation termination decision to the accused or the defense counsel.

2. After completing the investigation, if the defense counsel wishes to read, take notes of and copy documents included in the case file relevant to the defense, the investigative agency shall create favorable conditions for him/her to do so. The investigator shall file documents included in the case file relevant to the defense together into a volume. In case the defense counsel wishes to read or take notes of these documents, the investigator shall permit him/ her to do so in a working room at the office of the investigative agency. The investigator shall closely watch the defense counsel while he/she reads or takes notes of documents, preventing him/her from erasing, modifying, damaging, tearing, tampering with, fraudulently swapping or stealing documents. In case the defense counsel wishes to have photocopies of these documents, the investigator shall personally make such photocopies (with photocopiers) and give them to the defense counsel. The defense counsel's reading, taking of notes or photocopying of documents in the case file relevant to the defense must be reflected in a written record and documents handed to the defense counsel must be enclosed with a list thereof.

Article 12. Funding

Expenses for sending written requests for defense counsels of persons in custody or the accused in detention by registered mail or express mail service and expenses for copying documents in case files for defense counsels shall be covered by investigation funds.

The management and use of funds for the above-mentioned activities comply with the Regulation on management and use of investigation funds in the People's Public Security force, promulgated together with the Minister of Public Security's Decision No. 1443/2008/QD-BCA (V22) of August 28, 2008.

Article 13. Effect

This Circular takes effect on December 25, 2011.

Article 14. Implementation organization responsibility

1. The general directors of the general departments, the heads of the units of the Ministry of Public Security, the directors of the provincial-level Police Departments, the directors of the provincial-level Fire Police Departments and the heads of the investigative agencies at all levels in the People's Public Security shall implement and adequately disseminate the contents of this Circular to investigators, officers and soldiers engaged in criminal investigation and detention work.

2. Security General Department II and the Anti-Crime Police General Department shall coordinate with related units in monitoring, inspecting and guiding the implementation of this Circular. Any problems arising in the course of implementation of this Circular should be reported by police offices and local administrations to the Ministry of Public Security (through the Legal Department, Security General Department II and the Anti-Crime Police General Department) for timely guidance.-