What is Defense? And the Procedure for Registering Defense Counsel in Vietnam

1. What is Defense?

Defense is one of the crucial institutions of criminal procedure law and can be approached from various research perspectives.

Firstly, from the perspective of human rights, defense is a right of the accused (persons held in urgent circumstances, arrested persons, temporarily detained persons, suspects, defendants) recognized and guaranteed by law. This right is stipulated in Point g, Clause 1, Article 58; Point d, Clause 2, Article 59; Point h, Clause 2, Article 60; and Point g, Clause 2, Article 61 of the Criminal Procedure Code of Vietnam 2015. Accordingly, the accused has the right to defend themselves or to have a defense counsel. The accused may use all legally prescribed rights to refute part or all of the accusation or to mitigate their criminal liability.

Secondly, from the perspective of procedural functions, defense is one of the fundamental functions of criminal procedure and is opposed to the function of prosecution. Accordingly, the function of defense (exoneration) is a procedural activity carried out by the accused and defense counsel to refute part or all of the accusation or to mitigate the criminal liability of the accused. This function contributes to ensuring that the resolution of criminal cases is objective, fair, and in accordance with the law, avoiding a one-sided, prejudiced resolution that always prioritizes the prosecution by competent procedural agencies.

Thirdly, from the perspective of principles, defense is one of the fundamental principles of criminal procedure. This principle is stipulated in Article 16 of the Criminal Procedure Code. Accordingly, the accused has the right to defend themselves, to have a lawyer or another person defend them. Agencies and persons with the authority to conduct proceedings are responsible for informing, explaining, and ensuring that the accused fully exercises their right to defense as prescribed by law.

Fourthly, from the perspective of procedural activity, defense is a procedural activity carried out by the accused and defense counsel based on legal provisions, aiming to eliminate part or all of the accusation or to mitigate the criminal liability of the accused.

2. Procedure for Registering Defense Counsel

A person participates in proceedings as a defense counsel when their defense registration is accepted by the competent procedural agency or person. In all cases of participation in proceedings, the defense counsel must register their defense. When registering defense, the defense counsel must present the following documents:

• For lawyers: Present their lawyer’s card along with a certified copy and a request for a lawyer from the accused or their representative or relative.
• For representatives of the accused: Present their identification card or citizen identity card along with a certified copy and documents confirming their relationship with the accused, issued by a competent authority.
• For people’s defense advocates: Present their identification card or citizen identity card along with a certified copy and a document appointing the people’s defense advocate from the Vietnamese Fatherland Front Committee and its member organizations.
• For legal aid providers and lawyers performing legal aid: Present a document appointing the legal aid provider from the legal aid organization and their legal aid provider’s card or lawyer’s card along with a certified copy.

In cases where a defense counsel is assigned, the defense counsel must present the following documents:

• For lawyers: Present their lawyer’s card along with a certified copy and a document appointing the lawyer from the law-practicing organization where the lawyer practices or an assignment document from the Bar Association for individual practicing lawyers.
• For people’s defense advocates: Present their identification card or citizen identity card along with a certified copy and a document appointing the people’s defense advocate from the Vietnamese Fatherland Front Committee and its member organizations.
• For legal aid providers and lawyers performing legal aid: Present their legal aid provider’s card or lawyer’s card along with a certified copy and a document appointing the legal aid provider from the State Legal Aid Center.

Within 24 hours from the receipt of all documents stipulated in Clause 2 or Clause 3, Article 78 of the Criminal Procedure Code of Vietnam 2015, the competent procedural agency must examine the documents. If the case does not fall under the circumstances for refusing defense registration as stipulated in Clause 5, Article 78 of the Criminal Procedure Code of Vietnam 2015, the agency shall enter the defense in the defense registration book, immediately send a written notification of defense counsel to the person who registered the defense and to the detention facility, and keep the documents related to the defense registration in the case file. If the conditions are deemed insufficient, the defense registration shall be refused, and the reasons must be clearly stated in writing.

The written notification of defense counsel is valid for the entire duration of participation in the proceedings, except in the following cases:

– The accused refuses or requests a change of defense counsel.

– The representative or relative of the accused, as stipulated in Point b, Clause 1, Article 76 of of the Criminal Procedure Code of Vietnam 2015, refuses or requests a change of defense counsel.

A defense registration may be cancelled by the competent procedural agency if it falls under one of the following cases:

– When it is discovered that the defense counsel falls under the cases stipulated in Clause 4, Article 72 of of the Criminal Procedure Code of Vietnam 2015.

– Violation of the law during the course of defense.

When cancelling a defense registration, the competent procedural agency must notify the defense counsel and the detention facility.

3. Cases for Refusing Defense Registration

Pursuant to Clause 5, Article 78 of the Criminal Procedure Code of Vietnam 2015, the competent procedural agency shall refuse defense registration in one of the following cases:

– Cases stipulated in Clause 4, Article 72 of the Criminal Procedure Code of Vietnam 2015.

– The accused, who falls under the case for assigned defense counsel, refuses the assigned defense counsel.

4. LawFirm.Vn’s Defense Services

LawFirm.Vn’s defense services provide professional legal support to individuals and organizations in criminal cases. Our team of experienced lawyers is committed to protecting the legitimate rights and interests of clients, providing advice and guidance throughout the procedural process. Here are some highlights of LawFirm.Vn’s defense services:

• Professional Legal Team: Lawyers at LawFirm.Vn possess extensive knowledge of criminal law and rich practical experience. They are ready to listen and advise clients on legal issues related to the case.
• Legal Advice and Support: We provide detailed information on the rights and obligations of clients during the proceedings. We assist clients in preparing necessary documents and participating in working sessions with investigation agencies.
• Courtroom Defense: We represent clients in court, protecting their legitimate rights and interests. We build reasonable defense arguments to reduce penalties or achieve the most favorable outcome for the client.
• Information Confidentiality Commitment: We ensure that all client information is kept strictly confidential throughout the working process, building trust and reassurance for clients using our services.