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New circular sets out in detail rights of arrestees to demand legal assistance, and for defense lawyers to ask for change of principal investigator

A trial in
Ho Chi Minh City. A new circular sets out detailed procedures to ensure an arrestee's rights when criminal cases are being investigated.

The Da Lat People's Court recently apologized to a 40-year-old woman for having wrongly detained her for more than two months, and having sentenced her to 30 months' probation in 2007.

The court also compensated Vuong Thi Tam with VND105 million (US$5,000), and pledged to publish the apology in local media and also make it directly to the woman in the presence of other people in her neighborhood.

The case began in 2006 when Tam was detained for investigating allegations she had drugged a man and robbed him of VND8 million. Tam was let out on bail after 79 days of detainment.

In August 2007, Da Lat People's Court sentenced her to 30 months' probation.

Following her complaint, the Lam Dong Province People's Court opened a court of appeal four months later and found Tam was not guilty and that the confessions of Tam and the witnesses were contradictory to the investigation results.

She was actually the victim of a robbery staged by her husband Le Quoc Cuong, who wanted to send her to jail so he could get married to another woman.

The court said Cuong asked Tam to collect a debt from Trinh Ngoc Minh. While Tam was about to take the money, Minh pretended to become unconscious after smoking a cigarette. At that time, another friend of Cuong, Truong pretended to be passing by, catching Tam "red-handed," drugging Minh to get his money.

Cuong and his accomplices were tried in a separate case in 2008 on slandering charges and received probationary sentences of between two and three years.

In an effort to avoid similar unjustified court rulings like the one against Tam, the Ministry of Public Security has issued a circular that details procedures under the Criminal Procedure Code to ensure the accused's rights during a criminal investigation.

The Circular 70/2011-BCA, which will take effect on December 25, is a positive step in judicial reform, but should carry more clarity and detail, and allow authorized lawyers' increased access to investigation details, experts said.

"The Ministry of Public Security's issuing of the Circular 70 is a breakthrough that will heighten awareness among investigators about the role of lawyers in the judicial process," said lawyer Phan Trung Hoai, chairman of a committee to defend lawyers' rights.

"A remarkable aspect of the circular is that it respects and protect the rights of the arrestees to defend themselves or ask for others to defend them," he wrote in an op-ed in the Phap Luat Thanh Pho Ho Chi Minh (HCMC Law) newspaper.

Improving lawyer's role

According to the circular, investigators must explain the rights of the arrestees when handing over an arrest warrant and file a document on its receipt that also mentions the detainee's wish to have someone defend them.

In case the arrestee wants to have a lawyer/relative to defend him/her, the investigator in charge must send this request to the concerned person or firm within 24 hours of it being filed.

The investigator will have to ask the arrestee again if he/she wants someone to defend them before conducting the first interrogation session.

The circular lists the documents that lawyers would need to defend their clients. It also says investigators will have to issue a defense permit for them within 24 hours in temporary detainment cases (three days with possible extensions) and three days in cases where the person is detained for criminal investigation (four months with possible extensions).

Investigators have to notify the detainee's legal representative at least 24 hours (48 hours for long distance) before interrogation begins.

"At present, many lawyers are not informed of relevant decisions in time by the investigator," Hoai said.

Under the new circular, after an interrogation session is completed, investigators have to read out or allow the accused's legal representative to read the contents of the proceedings and get the latter's signature on the document.

The defense lawyer or legal representative will also have the right to request that the investigator be replaced, as regulated by the Criminal Procedure Code, if a conflict of interest involving the latter is evident.

The lawyer is also entitled to a copy of the document for use in the defense work.

More to do

Nguyen Van Hau, deputy chairman of HCMC Jurists' Association, said the new circular is a "positive" sign.

"This is a step forward in judicial reforms. But the role of lawyers and investigators would improve even more if they were more involved [in drafting the circular]," he told Thanh Nien Weekly.

According to the circular, the defense lawyer is not allowed to use cell phones or voice or video recorders when attending the interrogation of a suspect.

Hau said voice and video records are evidence as defined by the Penal Code and lawyers should be allowed to record during investigation so that they can clarify details.

"Fore example, an arrestee may tell the court that he was forced to make a wrong confession by the investigator. Such records would be evidence to show that the investigator was objective," he said.

He said the circular should also have more details regarding several other things, including conducting an interrogation without the defense lawyer in urgent cases and the investigator's permission being needed for the defense to talk to the suspect.

"It is necessary to clarify when an urgent confession can be obtained (without the 24-hour notice given to the defense lawyer), for example, when the suspect is about to die. Without such details, there will be loopholes that could be abused."

"Lawyers should be allowed to ask questions of their clients instead of waiting for permission from the investigator as regulated. What if the investigator does not allow them to ask a question?" he said.

Hau said there should be more interaction between defense lawyers and investigators. The latter should not consider the former as opponents but as people cooperating with them to solve criminal cases.

"Lawyers do not hinder investigator's work [during interrogation] but actually help them in avoiding unjustified verdicts. There will be fewer complaints and fewer court rulings being reviewed then," he said.

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