Vietnam

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VIETNAM CRIMINAL DEFENSE MANUAL

  1. The importance of legal defenders
  2. Defending a criminal case
  3. First meeting with client
  4. Preparation of the defense
  5. Motions to aid the defense

CODES

LEGAL TRAINING RESOURCE CENTER


Background

The Socialist Republic of Vietnam comprises 58 provinces, 5 municipalities, and its capital is Hanoi. In 1858, France began the conquest of Vietnam which ended in 1887, when the latter became part of the French Indochina. Vietnam declared its independence after World War II, but France continued to rule until its 1954 defeat by Communist forces led by Ho Chi Minh.

Under the Geneva Accords of 1954, Vietnam was divided into the communist north and anti-communist south. US economic and military aid to South Vietnam grew through the 1960s in an attempt to bolster the government, but US armed forces were withdrawn following a cease-fire agreement in 1973. Two years later, North Vietnamese forces overran South Vietnam reuniting the country under communist rule.

The Vietnamese government has demonstrated a strong commitment and dedication to ensuring social and political stability as well as economic progress, as evidenced by the policies and changes implemented over the years. The introduction of Doi Moi (reform) in 1986 has put Vietnam in a position to prosper and flourish economically. The legal system is under revision, as demonstrated by the 1992 Constitution and 1988 Criminal Procedure Code.

More recently, Vietnam became the 150th member of the World Trade Organization (WTO). With these new developments, Vietnam is in the process of bringing its legal system up to international standards and is introducing many new laws and needs help to implement them. Improvements in laws relating to legal aid and rights of lawyers, too, while providing new opportunities, also create more needs for training, in terms of lawyers' professional skills.

Type of System

The legal system is based on communist legal theory and French civil law system. Vietnam has a two-tier court system, made of courts of first instance and courts of appeal. The system consists of the Supreme People’s Court, the Provincial People’s Courts, and the District People’s Courts. There are specialized courts at the Supreme People’s Court, and at the provincial level. These include criminal courts, civil courts, economic courts, administrative courts and labor courts. The tribunal panels at the first instance are composed of both judges and people’s jurors (usually one judge and two people’s jurors, Article 185 Criminal Procedure Code). People’s jurors at each level are lay people elected by the People’s Council of the same level, at the recommendation of the Vietnam Fatherland Front. One major factor of concern related to the independence of the courts is the unwritten practice of local courts to request opinions from the superior courts, in complex cases. The district-level peoples courts and the regional military courts shall conduct first-instance trial of criminal cases involving less serious offenses, serious offenses and very serious offenses, excluding a few offenses such as the ones involving national security (Article 170 CPC).

Sources of Defendants' Rights

The Constitution was approved on 15 April 1992. Chapter V is dedicated to Fundamental Rights and Duties of the Citizen, and Article 50 affirms that in Vietnam “human rights in the political, civic, economic, cultural and social fields are respected. They are embodied in the citizen's rights and are determined by the Constitution and the law.” The Criminal Procedure Code (CPC) was approved in November 2003.

Defendants' Rights

Vietnamese citizens have the right to file complaints to the competent state authorities, against wrongdoings of individuals and state agencies. If they suffered losses and injuries, they are entitled to damages and their reputation shall be rehabilitated (Article 74 Const, Articles 29, 30, 31 CPC). According to both the Constitution and the Criminal Procedure Code (Article 52 Const., and Article 5 CPC), criminal proceedings shall be conducted according to law, and on the principle that all citizens are equal before law. All parties enjoy the same rights, such as the right to present evidence, documents and objects, make claims, and argue before the court (Article 19 CPC). The accused shall not be considered guilty until a court judgment becomes final (Article 72 Const, Article 9 CPC), and he is also entitled to the right to notice of charges (Article 49 CPC), and the right to defend himself or ask other persons to defend him. Investigating bodies, procuracies and courts have the duty to ensure that detainees, accused and defendants exercise their right to defense.

Pre-Trial

In accordance to article 71 Constitution, citizens are considered inviolable, and it is strictly forbidden using all forms of harassment, coercion, torture, and violation of their honor and dignity. As well, taking a person into, or holding him in, custody must be done with full observance of the law.

People held in custody shall be informed of the reasons for their custody, and explained about their rights and obligations. They shall be allowed to defend themselves or ask other persons to defend them, and to complain about their custody, procedural decisions or acts of the bodies and/or persons with procedure-conducting competence (Article 48 CPC).

Arrest, custody, temporary detention, ban from travel outside ones residence, guaranty, or deposit of money may be used to prevent crimes when there are grounds proving that the accused or defendants would cause difficulties to the investigation, prosecution or adjudication, or they would continue committing offenses (Article 79 CPC).

Arrests require a warrant to be executed, unless offenders are caught red-handed. The arrestee has the right to be notified of the reasons of the arrest, as well as to have his family notified of the procedure. The person executing the arrest must strictly implement the law, and in case of violations he can be disciplined or criminally liable (Articles 6, 12, 80 CPC).

The Criminal Procedure Code states that defense counsels must be present from the commencement of the criminal proceeding. In case of an arrest, the defense counsel must be present from the time the custody decisions are issued. However, in cases when it is necessary to keep secret, the chair of procuracies may decide to allow the participation of defense counsel starting from the termination of the investigation (Article 58 CPC).

Any person who has been arrested, held in custody, prosecuted, brought to trial in violation of the law is entitled, according to the Constitution, to damages for any material harm suffered and his reputation shall be rehabilitated (Article 72 Cons).

Searches require a warrant to be executed, as well. Body searches, searches of residences, working places and premises can be conducted only when there are grounds to believe that there are instruments, or other objects related to the commission of the offense (Articles 140,141 CPC).

Confrontations and identifications must be conducted following the procedures indicated in Articles 138 and 139 of the Criminal Procedure Code.

The interrogation of the accused must be carried on by investigators immediately after the decision to initiate criminal proceedings. Investigators must read the decision and clearly explain the accused his rights and obligations. In case of many accused, each of them must be questioned separately and they shall not be allowed to contact one another. Investigators are not allowed to conduct interrogation at night, except when it is otherwise possible, and motivation has to be given. Investigators or procurators who extort statements from the accused or apply corporal punishment to the accused must bear penal liability (Articles 130, 131 CPC).

Trial

Within 3 days after the decision to go forward with the prosecution, the procuracies must notify the accused and defense counsels. Within the following three days, the procuracies must send the files and indictments to the courts (Article 166 CPC). The burden of proof is upon the prosecution, and the defendant has the right not be forced to prove his innocence (Article 10 CPC).

At trial, defendants have the right to notice of charges and to be informed of any decision regarding their case. They have the right to participate to court sessions, to receive explanations about their rights and obligations, to present documents, to defend themselves or ask other persons to defend them, to present opinions, argue at court sessions; to have final words before the final deliberation; and to appeal against judgments and decisions of the courts (Article 50 CPC).

The accused, defendant or their lawful representatives have the right to choose their own defense counsel. If they do not seek legal assistance, the investigating bodies, procuracies or courts must request bar associations to appoint a defense counsel, in death penalty cases, minors, and people with physical and mental issues. One defense counsel may defend multiple persons in custody, accused or defendants in the same case, provided that the rights and interests of such persons are not conflicting. The accused and the defendant may have more than one defense counsel..

Within three days from the date of receiving the requests of the defense counsel, the investigating bodies, procuracies or courts must consider and grant him the defense counsels certificates, in order to perform his duties (Articles 56, 57 CPC).

Defense counsels have the following rights:

  • To be present when testimonies are taken from the persons in custody, when the accused are interrogated, and, ask questions to the persons in custody or the accused if so consented by investigators; and to be present in other investigating activities;
  • To read the minutes of the proceedings in which they have participated, and procedural decisions related to the persons whom they defend;
  • To request investigating bodies to inform them in advance of the time and places of interrogating the accused so as to be present when the accused are interrogated;
  • To request the change of procedure-conducting persons, experts and/or interpreters;
  • To collect documents, objects and details related to their defense;
  • To present documents, objects as well as claims;
  • To meet the persons kept in custody;
  • To meet the accused or defendants being under temporary detention;
  • To read, take notes of and copy records in the case files, which are related to their defense, after the termination of investigation according to law provisions; To participate in questioning and arguing at court sessions;
  • To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence (Article 58 CPC).


Confessions of the accused or defendants shall only be regarded as evidences if they are consistent with other evidences of the cases. Confessions of the accused or defendants must not be used as sole evidences for conviction (Article 72 CPC). Defendants, victims and their lawful representatives have the right to appeal against first-instance judgments or decisions (Article 231 CPC).


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QUICK FACTS

  • 2009 Prison Population: 107,668.