tiếng anh tóm tắt bảo đảm quyền có người bào chữa của người bị buộc tội so sánh giữa luật tố tụng hình sự việt nam đức và mỹ

LUND UNIVERSITY HO CHI MINH CITY
FACULTY OF LAW UNIVERSITY OF LAW

LUONG THI MY QUYNH

GUARANTEE OF THE ACCUSED PERSON’S RIGHT
TO DEFENSE COUNSEL - A COMPARATIVE OF
VIETNAMESE, GERMAN AND AMERICAN LAWS

Field of Study: International and Comparative Law
Code: 62.38.60.01

A SUMMARY OF THE DOCTORAL
DISSERTATION OF LAW




HO CHI MINH CITY - 2011

This research was done at:
LUND UNIVERSITY, FACULTY OF LAW
HO CHI MINH CITY UNIVERSITY OF LAW

Supervisors:
PROF. PER-OLE TRÄSKMAN
ASST. PROF. NGUYEN THAI PHUC

Discussant 1: Ass. Prof. Dr. Christoffer Wong

Discussant 2: Prof. Dr. Hồ Trọng Ngũ
Discussant 3: Prof. Dr. Terttu Utriainen

This dissertation will be defended at the Ho Chi Minh City
University of Law
Date and time: Friday November 25, 2011 at 13.30 PM

This dissertation may be found at following libraries:
- Vietnam National Library
- Library of Ho Chi Minh City University of Law
- Library of Lund University Faculty of Law



PUBLISHED ACADEMIC ARTICLES RELATED TO
THE THE DISSERTATION

1. Luong Thi My Quynh (2010), “Study of inquisitorial procedure
model and recommendations for improving criminal procedure
models of Vietnam” (“Tìm hiểu mô hình tố tụng thẩm vấn và
những kiến nghị hoàn thiện mô hình tố tụng hình sự Việt
Nam”), Legislative Science Journal (No.6/2010)

2. Luong Thi My Quynh (2011), “Guarantee of the right to defense
counsel under the American criminal procedure (“Bảo đảm quyền
có người bào chữa trong tố tụng hình sự Mỹ”), Legislative
Science Journal (No.4/2011)

3. Luong Thi My Quynh (2011), “Recommendations for improving
the Criminal Procedure Code of Vietnam regarding the right to

defense counsel (“Những kiến nghị hoàn thiện pháp luật Tố
tụng hình sự Việt Nam về bảo đảm quyền có người bào
chữa”), Legislative Study Journal (No.23/2011)





1

INTRODUCTION

1. Background
The tasks of guaranteeing human rights and improving the
laws of criminal procedure have been currently attracting much
attention of many nations. However, one of the difficulties that
such nations face in improvement of the laws is the assurance
of the balance between objectives of criminal procedure laws
that is the balance between the task of handling crimes and
maintaining the strictness of laws and the guarantee and non-
violation of the procedural rights of the accused. Practically, in
a few nations, the procedural rights of the accused, including
the right to defense counsel, are not fully guaranteed, and are
even violated.
In Vietnam, practical settlement of criminal cases tends to
indicate that incorrect judgments still exist that naturally
prejudices the legitimate rights and interests of citizens,
including the right to have defense counsel in criminal cases.
This results from various causes, of which the overlapping and
contradictory nature of the laws is one. Even though the

Vietnamese Criminal Procedure Code has undergone several
amendments and supplements, it has only partly overcome its
existing shortcomings. As such, the legal rights and interests of
the accused have not been fully guaranteed and are even
violated. Under these circumstances, the State has taken
initiatives showing its decisiveness to speedily improve the
legal system in general and the Criminal Procedure Code in
particular. Like many other nations around the world, Vietnam
has been carrying out a comprehensive reform of criminal
justice. Resolution No. 08/NQ/TW dated 2 January 2002 and
Resolution No. 49/NQ/TW dated 2 June 2005 of the Politburo
prescribe one of key tasks of judicial reform is to expand the
proceedings at criminal trials, in which the need for further
expansion of the rights of defense counsel and the accused is

2

emphasized. This is a firm basis to improve the fairness of the
legislation in general and the guarantee of the accused’s right to
defense counsel in particular.
However, in order to obtain the effectiveness of judicial
reform in criminal procedure, the expansion of international
cooperation in the fight against crimes in general and criminal
procedure activities in particular is an objective necessity in
line with the general trend towards legal harmonization.
Wishing to contribute to the enhancement of the effectiveness
of improving the law regarding the right to defense counsel, the
author chose to undertake the research at PhD level on the
theme: “Guarantee of the accused person’s right to defense
counsel - A comparative study of Vietnamese, German and

American Criminal Procedure Laws”. In the author’s opinion,
the research should be based on the following theoretical and
practical foundations:
First, like Germany, the US and many other nations in the
world, Vietnam pays considerable attention to the setting up
and improving of legal instruments in the field of criminal
procedure which relate to the guarantee of the procedural rights
of the accused, of which the guarantee of the right to defense
counsel is one of the most important. As a result, studying and
comparing the legal mechanisms guaranteeing the right to
defense counsel in these three nations will be necessary for
establishing its foundations.
Secondly, Vietnamese, German and US criminal procedure
law have all recognized that the right to defense counsel is a
fundamental procedural right of the accused that needs to be
fully guaranteed. Despite key successes in legislative aspect,
there are a number of shortcomings in the regulations that need
to be analyzed, clarified and improved. As to Vietnam,
difficulties and problems regarding both the awareness and the
practical application of these regulations have not been
resolved. My theme may lead me to explore the contents of a

3

number of laws that need to be improved.
Thirdly, the practical application of Vietnamese criminal
procedure laws is poorer than the statutory regulations would
anticipate. The knowledge and professional conduct of persons
conducting proceedings and of counsel still contain
shortcomings and mismatches. This may affect or even damage

the rights and interests of accused persons involved in
proceedings. As such, it is advisable to study measures to
remedy such circumstances.
Fourthly, researching and comparing the criminal
procedure laws of Vietnam and those of certain nations other
regarding the guarantee of the right to defense counsel is a
sound requirement in line with the general trend towards legal
harmonization. This will give Vietnam opportunities to study
and learn from experience, in a selective manner, when making,
amending, supplementing and applying criminal procedure
laws on the guarantee of the right to defense counsel. On such a
basis, Vietnam can improve the statutory regulations on the
right to counsel, and enhance the effectiveness of the
investigation, prosecution and judgment of criminal cases.
2. Purposes and duties of the research
This dissertation has two aims. The first is to study the
laws of Vietnam, Germany and the US regarding the guarantee
of the accused’s right to defense counsel. To serve this purpose,
the dissertation focuses on clarifying scientific perspectives,
provisions of the applicable criminal procedure laws and
materials reflecting the practical context of the guarantee of the
right to defense counsel in the selected countries, Vietnam,
Germany and the United States. The foregoing researches have
been conducted to answer the question of how the accused’s
right to defense counsel is guaranteed in criminal procedure in
Vietnam, Germany and the United States.
The second aim of this dissertation is to propose suitable
and practicable solutions to improve the applicable criminal

4

procedure laws of Vietnam in terms of the guarantee of the
right to defense counsel and then to contribute to the
improvement of the effectiveness of handling criminal cases to
the satisfaction of the duty of handling crimes while still
guaranteeing human rights in criminal procedure.
In line with these two aims, this dissertation will solve the
following duties:
First, giving a comparison between the scientific and
historical views of the guarantee of the right to defense counsel
and clarifying the common theoretical bases concerning the
guarantee of this right in criminal procedure.
Secondly, clarifying the contents of the applicable
provisions of international law and the laws of Vietnam,
Germany and the United States on guaranteeing the right to
defense counsel. This will be affected by the comparative
method with a view to find out similarities and differences, and
then explain such similarities and differences. Concurrently,
analyzing and pointing out the advantages and limitations of the
applicable criminal procedure laws on guaranteeing the right to
defense counsel.
Thirdly, learning about and giving assessments on the
actual status of the guarantee of the right to defense counsel in
Vietnam, Germany and the United States, again by the
comparative method, for the purpose of acknowledging the
strengths and weaknesses of applying laws in each nation.
Finally, on the basis of studying theoretical foundations
and applicable laws as well as the practical application of the
laws of Germany and the United States on the guarantee of the
right to defense counsel, the dissertation proposes a number of

recommendations for improving the applicable laws of Vietnam
for the purpose of improving the effectiveness of the guarantee
of this right in criminal procedure.
3. Delimitation

5

The present research project lies in the field of criminal
procedure law and uses a comparative approach. However, it
explores questions concerning the right to defense counsel from
a legal perspective rather than other aspects such as economic
or social management mechanism, etc. Therefore, subjects to be
researches herein will be scientific standpoints and provisions
of the applicable criminal procedure laws of Vietnam, Germany
and the United States which regulate the right to defense
counsel as well as the practical materials of competent
authorities and courts’ judgments. In addition, international
legal instruments directly related to the research topic will also
be analyzed to clarify the conformity of these national laws to
international standards.
4. Status of study
The right to defense counsel of the accused has been early
recognized in the history of international criminal procedure
laws as well as of Vietnamese criminal procedure laws. Under
the Vietnamese laws, the right to defense counsel has been
recognized in the Constitution and the Criminal Procedure
Code as a fundamental principle orienting procedural activities
of competent authorities. Nevertheless, the guarantee of this
right in practice still has many limitations, not only in Vietnam
but also in many other nations in the world. In practice,

researches to find out solutions to further guarantee rights and
interests of the accused in criminal procedure have been
conducted by many scientists. However, most researches have
mentioned the guarantee of the accused’s fundamental rights
only. Direct researches on the guarantee of the right to defense
counsel are still in few crumbs, especially, no research has been
conducted by way of a comparative approach.
In Vietnam, researches relating to the guarantee of the right
to defense counsel are still very limited. Most researches have
been conducted under the form of academic articles or papers at
Seminars and they are narrowed at the level of interpreting

6

legal positivism. Generally, contents mentioned in such articles
have focused on three aspects: first, researches on provisions of
the Criminal Procedure Code in terms of guaranteeing human
rights (including the accused’s rights); secondly, researches on
criminal procedure principle of guaranteeing the right to defend
of the accused in general; thirdly, researches on the role of
defense counsel in criminal procedure. In addition, few
academic articles mention the guarantee of the right to defence
in general in the context of judicial reform. A number of
researches in the form of books and dissertations (at LL.M and
Ph.D level) have become out-of-fashionable without
documentary nature. In a larger range, some groups of experts
have carried out researches on the actual activities of lawyers in
criminal procedure; however, such researches have been halted
at the level of surveyed statistics.
Nevertheless, results of the aforesaid researches have

helped clarify provisions of criminal procedure laws on
guaranteeing the right to defend in general and point out the
existing weaknesses in a relative manner. However, such
researches have not been conducted by a direct and
comprehensive approach to the guarantee of the right to defense
counsel; especially they have hardly mentioned the guarantee
of this right in an international perspective.
In foreign scientific research forums, a few articles and
research projects have mentioned the right to defense counsel.
Most of the aforesaid researches are conducted within the scope
of national laws only. Additionally, certain researches have
been written by way of a comparative approach and most of
them are likely a description of nations’ criminal procedure
laws. Furthermore, few researches relating to procedural rights
of the accused have been approached in the aspect of
international laws on guaranteeing human rights.
Generally, the foregoing researches have provided the
author with a large range of basic knowledge about the

7

international criminal procedure, and of other countries,
especially Germany and the United States. As a result, a
comprehensive research on the right to defense counsel of the
accused as well as legal mechanisms guaranteeing rights in
comparison and contrast with international laws is greatly
requisite and meaningful.
5. Research methods
On the basis of the method of dialectical materialism and for
the purpose of well performing given duties of the theme, the

following common methods have been used to carry out
researches hereof: analysis and synthesis.
The universal tasks of sciences in general and legal science
in particular are description, explanation, evaluation and
prediction. The theme is orienting to study provisions of laws,
as such, particular methods in the field of law academy have
been employed by the author while writing the dissertation.
Analysis can be mentioned as the first method based on legal
dogmatics. This method is used to interpret, analyze and assess
contents and effectiveness of statutory provisions and
concurrently systemize them according to unified criteria and
based on that predict and recommend the developmental path of
such statutory provisions. Moreover, this method has also been
used in interpreting and comprehending correctly arguments of
courts and competent authorities, state policies as well as
relevant legal doctrines in international laws and laws of three
selected countries (Vietnam, Germany and the United States)
regarding the guarantee of the right to defense counsel.
Applying this method in doing researches, I do wish to give a
comprehensive view of provisions of certain typical legal
systems regarding the guarantee of the right to defense counsel
and at the same time to propose appropriate recommendations
for improving the Vietnamese laws.
Legal comparison is also a particular method of the
dissertation. Comparison between different legal systems aims

8

at not only finding out similarities and differences but also
making a comprehensive understanding and assessment of a

legal system. In addition, comparison is an effective method to
help point out strengths and weaknesses in each legal system.
The result thereof has also shown that there is no absolute
perfect in the criminal procedure laws of each country
regarding the guarantee of the right to defense counsel and the
study of experience of each other from legal practices of the
countries needs a selection. Taking advantage of the results of
comparison and contrast with the German and American
criminal procedure laws, the author has proposed
recommendations on improving the Vietnamese criminal
procedure laws regarding the guarantee of the right to defense
counsel on the basis of contrast, selection and consideration the
suitability to the conditions of Vietnamese laws.
Legal historical researching method has been also used by
the author to demonstrate linkages and continuance of legal
provisions and legal making perspectives concerning the
guarantee of the right to defense counsel. Additionally,
interviews have been used to exchange information by way of
discussions with legal experts, lawyers and legal scholars in the
field of criminal procedure laws. Such interviews have been
very helpful in providing the author with an accurate and multi-
dimensional view of legal systems at work.
6. New research results of the dissertation
This is one of scientific researches at Ph.D level approaching,
in a comprehensive manner, the guarantee of the right to defense
counsel of the accused by way of comparison of different criminal
procedure laws. The research theme has given a number of fresh
contributions as follows:
1. Giving an overview of historical perspectives of the
formation of the right to defense counsel. Clarifying of the

objective relationship between the guarantee of the right to
defense counsel and the concept of Due process of law and the

9

foundation principle of the Right to fair trial in criminal
procedure. Pointing out the connection between the guarantee
of the right to defense counsel and the guarantee of the fairness
and unbiased in criminal procedure.
2. Generalizing views and conceptions of international laws
and Vietnamese laws concerning the right to defense counsel
by which summarizing and affirming fundamental contents of
guaranteeing of the right to defense counsel in both
international aspect and national one.
3. Systemize provisions of Vietnamese, German and US
criminal procedure laws concerning the guarantee of the right
to defense counsel by way of contrast and comparison.
Especially, it is hereby to point out similarities and differences
as well as appropriate aspects and limitations in each legal
system.
4. Giving a number of recommendations on improving the
Vietnamese criminal procedure laws concerning crimes and the
right to defense counsel on the basis of selectively absorbing
experience of Germany and the United States. Concurrently, it
is hereby to propose a number of recommendations on
enhancing the effectiveness of applying laws on guaranteeing
the right to defense counsel in Vietnam.
7. Outline of the dissertation
The dissertation is outlined according to its objectives,
subjects and scope of researches. The dissertation is composed

of the Introduction, List of Abbreviations, List of Reference
Materials and Five Chapters.

10

BASIC CONTENTS OF THE DISSERTATION
Chapter 1
BASIC ISSUES ON GUARANTEEING THE ACCUSED
PERSON’S RIGHT TO DEFENSE COUNSEL
1.1. Basic theoretical issues on the guarantee of the accused
person’s right to defense counsel
1.1.1. Historical views of the guarantee of the right to defense
counsel
It is found from the research’s results that the right to
defense counsel was recognized since a very early time. Initial
manifestations of this right have been found in the Middle Ages
and this right was strongly developed in common law-based
countries. Afterwards, advanced effects of the right to defense
counsel have spread to continental European nations. Historical
views have acknowledged the right to defense counsel as a
fundamental right and requires to be guaranteed on the basis of
the following theoretical and practical foundations:
- The participation of the defense counsel is recognized
upon objective demands in terms of fairness in treating the
offender.
- The participation of the defense counsel is to resist the
severity of judgment procedures against the offender;
- The participation of the defense counsel closely attaches
to the history of formation of a fair adversariality (a particular
of the adversarial model). The defense counsel plays the role of

assisting the accused at the court to oppose the accusations of
the King. This model appeared since early 12
th
century in
England and was drastically expanded in 16
th
and 17
th

centuries. These historical factors have indicated that the right
to defense counsel is a development of the right to self-defense.
- Upholding the perspective of fairness and humanitarism
of laws, the right to defense counsel has been guaranteed in
serious cases. The policy of guaranteeing the right to defense
counsel without charge for the indigents even was first

11

recognized in 1494 in England.
The foregoing historical views have set a base for current
development of the right to defense counsel.
1.1.2. Legal foundation of guaranteeing the right to defense
counsel
By way of legal historical research method, in combination
with legal dogmatics method, the author has found out the
objective relationship between the concept of Due process of
Law, the principle of Right to fair trial and the guarantee of the
right to defense counsel. Due process of law is a historical
concept closely connecting with people’s struggles for finding
the equality under severe regulations and procedures stipulated

by the Kings. In treating offenders, the requirement of a due
process is a legal basis guaranteeing rights and interests of the
accused towards accusations of the State.
The concept of a due process of law has formed a
foundation for the formation and development of the principle
of the right to a fair trial. This is a fundamental principle in
guaranteeing procedural rights of the accused and has been
recognized in most international and national legal instruments.
In criminal cases, the principle of the right to a fair trial
contains one sole content, that is the guarantee of the ‘equality
of arms’. Accordingly, the accused is guaranteed to be judged
by a fair trial without bias and is granted with equal
opportunities as to the accusing party in a case in terms of
collecting and presenting evidences for defending and is
entitled to argue equally at the trial court, etc.
With the foregoing theoretical point of view, the author has
clarified the relationship between the guarantee of the right to
defense counsel with the principle of due process of law and
principle of the right to a fair trial. This is the relationship
between foundation issues and practical results. The right to
defense counsel of the accused may be difficult to be
completely guaranteed if there is any violation of the two

12

aforesaid principles. On the contrary, the equality of arms in
criminal procedure can be only complied with once the right to
defense counsel is respected and guaranteed.
1.1.3. Purpose of the right to defense counsel
In order to determine the importance of the guarantee of

the right to defense counsel in criminal procedure, it is
advisable to explain the objectives of studying this right. Many
scientists’ opinions have shown that the right to defense
counsel should be guaranteed to:
- Give the accused equal opportunities as their procedural
status itself expresses non-equality towards the accusations of
the competent authorities;
- Provide the defense counsel to guarantee human rights
when the accused has to incur sanctions in criminal procedure
such as arrest, provisional custody, detention, etc.
1.2. Guarantee of the right to defense counsel in
international legal documents
1.2.1. Overview of international legal documents in
connection with the guarantee of the right to defense counsel
This content is an overview and systemization of
international legal instruments relating to the right to defense
counsel. Legal instruments referred herein include:
International Convention on Civil and Political Rights;
European Convention on Human Rights; American Convention
on Human Rights; African Charter on Human and People’s
Rights. Additionally, documents and conclusions of the
Organizations and Courts enforcing Conventions have been
taken into consideration to clarify the contents of guaranteeing
the right to defense counsel within the scope of international
laws.
1.2.2. Guarantee of the right to defense counsel under
international legal documents
Results of researches have shown that the right to defense
counsel under international legal instruments has been

13

guaranteed in the following aspects:
- The right to adequate time and facilities for the defense;
- The right to defense counsel: this right appears after a
person is arrested and it is guaranteed in pre-trial stage and trial
stage;
- The right to free defense counsel if the accused cannot
afford to pay counsel’s fee or in case for public interests;
- The right to communicate with the defense counsel
without being overseen by a third party unless there is any other
exception to ensure public security;
- The right to collect evidence and summon witnesses.
The above are fundamental contents consistently
recognized in international legal instruments. In practice,
aspects of the guarantee of such rights have been explained in
more details in the awards of the Courts judging the exercise of
regulations of Conventions. Nevertheless, the foregoing
contents would be considered as a criterion to contrast,
compare and assess selected legal systems.

Chapter 2
GUARANTEE OF THE RIGHT TO DEFENSE COUNSEL
UNDER VIETNAMESE CRIMINAL PROCEDURE
LAWS
2.1. Overview
2.1.1. Background on Vietnamese criminal procedure
One of factors making differences in mechanizms of
guaranteeing the right to defense counsel among legal systems
is the particular characteristic of criminal procedure models. In

this content, the author has described and given demonstrations
of specific characteristics in the procedures for handling
criminal cases under the Vietnamese criminal procedure laws.
Vietnamese laws are affected by continental European legal
systems and written laws. Court awards are only valid and
enforceable against each specific cases without being referred

14

as precedents. As such, the Vietnamese criminal procedure has
been much affected and bears characteristics of inquisitorial
procedure system. Accordingly, the Vietnamese criminal
procedure has the following characteristics:
- Procedural activities are conducted by way of
interrogation. Results of evidencing crimes are expressed by
decisions which are concluded from results of the investigation
by investigation bodies and indictments of the procuracy
bodies.
- A court trial is regarded as a public investigation.
Collected evidence must be investigated at the trial court, and
the burden of proof will be undertaken by the court. The judges
take the initiative role in judging. Awards of the jury are given
on the basis of belief of the court about objective truth of the
case which is not merely the result of a fair adversariality
between the parties (the accusing party and the defending party)
as it is in an adversarial procedure model.
- The defense counsel plays a vague role during the
proceedings. Provisions on the right to defend of the accused as
well as rights and obligations of the defense counsel have
remained many limitations. This is one of causes leading to the

fact that the right to defense counsel is not guaranteed.
2.1.2. History and development of the right to defense counsel
of the accused under Vietnamese criminal procedure laws
Studying the formation and development of the right to
defense counsel has given an indication that policies of the State
of Vietnam are consistent and always heighten the guarantee of
fundamental procedural rights of the accused. This process has
been recognized in three stages:
2.1.2.1. Period from 1945 to 1954
This period marks the founding of the Democratic
Republic of Vietnam. In this period, the right to defense
counsel was already recognized; however, this right was only
applied at the trial court. A defense counsel might be a lawyer

15

or another person (Decree No. 33 dated 13 September 1945
regarding the establishment of a Military Court and Article 67
of the Constitution 1946).
2.1.2.1. Period from 1955 to 1988 (before the comming
into effect of the Vietnamese Criminal Procedure Code)
In this period, basically, the right to defense counsel was
only applied at the trial court. This is the first time laws
recognized the responsibility of the competent authorities to
guarantee the right to defense counsel (Article 101,
Constitution 1959). In addition, laws already mentioned the
obligation of appointing the defense counsel for the defendant
who is a juvenile (Circular No. 16-TATC dated 27 August
1974 of the Supreme People’s Court Specifically Guiding the
Orders and Procedures of a First Trial). Concurrently, an

organization of counsel was established in this period to help
the accused and other concerned persons on their legal situation
(Article 133, Constitution 1980; Ordinance on Lawyer
Organizations dated 18 December 1987). Adding to counsel
teams is the founding of people’s advocates (Circular No.
691/QLTPK on the Defense Nationwide dated 31 October
1983).
2.1.2.2. Period from 1989 to the present
In this period, the right to defense counsel has been
stipulated quite complete. The right to defense counsel has been
recognized as one of constitutional rights of the accused
(Article 132 of the 1992 Constitution) and the guarantee of the
right to defense counsel is a basic principle of the Criminal
Procedure Code (Article of the Ciminal Procedure Code 2003).
Accordingly, the accused is guaranteed to have a defense counsel
right after having a custody decision. This right is guaranteed
during the investigation, prosecution, hearings (first trial and
appealate).
2.2. The current laws of Vietnamese criminal procedure
guarantees the right of the accused to defense counsel

16

2.2.1. Right to defense counsel of the accused is a basic right
2.2.2. The Criminal Procedure Code 2003 on the defense
counsel
As provided in Article 56 of the Criminal Procedure Code,
defense counsels may be: lawyers, people’s advocates or lawful
reppresentatives of the detainee, the accused or defendants.
However, practically, entities involving in the defense for the

accused are mainly lawyers in criminal cases while the
provisions of the Criminal Procedure Code have not actually
supported lawyers as well as other counsels to uphold their
function of defending in cases. It is practically shown that the
qualification of a defense counsel is also one of issues affecting
the defense effectiveness.
2.2.3. The responsibility of the competent authorities in
guaranteeing the defense right of the accused
On the basis of the principle of ‘Guaranteeing the defense
right of the detainee, the accused and the defendants’ under
Article 10 of the Criminal Procedure Code, the competent
authorities (including investigation bodies, procuracies bodies
and courts) have the obligation of guaranteeing that the accused
can perform their right to defend and facilitating the defense
counsel to perform their defense function in a good manner.
Reseaches’ results have proved that the Vietnamese Criminal
Procedure Code, in comparison with international law
standards, have breakthrough provisions on responsibilities of
the competent authorities, for example, provisions on the
responsibility of the investigation bodies to inform time and
place of interrogation that the defense counsel may take part in;
provisions on issuing the defense counsel certificate and
making favorable for the defense counsel to meet with his/her
client who is in custody or detention, etc or provisions on the
responsibility to guarantee fair arguments at the trial court, etc.
Nevertheless, the Code has not recognized the right to keep
silent of the accused as well as the responsibility of the

17

competent authorities to interpret the right to keep silent and
right not to declare evidences against himself/hersel. This is a
shortcoming required to be taken into consideration for
supplementing.
2.3. Comments on the practice of guaranteeing the right to
defense counsel to accused persons in Vietnamese criminal
procedure
2.3.1 Achievements made in the guarantee of the right to
defense counsel of the accused
2.3.1.1. Legislative achievements
Since the commencement of 2002 judicial reform, the
activities of law-making in the field of criminal procedure have
been increasingly put more attention. Amendments and
supplements to the Criminal Procedure Code 2003 should be
first reffered with substantial progresses that better guarantee
rights and interests of people and of the accused. The right to
defend has been further improved and expanded. In addition,
the promulgation of the Law on Lawyers (2006) and the Law
on Legal Aid (2006) have been setting up firm legal bases for
defending activities.
2.3.1.2. Achievements in the area of implementation of the
law
- The spirit of judicial reform has positively influenced the
attitude and logical thought of those conducting criminal
proceedings. The defense counsel have been made more
favorable as involving in criminal proceedings at investigation,
prosecution and judgement stages;
- Qualification of defense counsel has been paid much
attention that brings effectiveness in defending and enhancing
the quality of case judgment. Reports of the Supreme People’s

Court and Bar Associations have shown that the participation of
defense counsel in criminal cases have been further increased
that makes a decrease of the number of cases subject to
appealing or protesting, etc.

18

2.3.2. Shortcomings in the practice of guaranteeing the right
to defense counsel of the accused
In addition to the foregoing achievements, the guarantee of
the right to defense counsel has remained certain shortcomings,
mainly in the following aspects:
2.3.2.1. Regarding normative regulations
This is the most substantial shortcoming affecting the right
to defense counsel. It is hereby given an overview of
shortcomings and ommissions concerning the right to defense
counsel (taking the following as examples: laws have not
clearly stipulated the right to waive, select and change the
appointed counsel; the regulation on the time to have a defense
counsel has been still strict; no comprehensive regulation has
been promulgated on the responsibility of persons conducting
criminal proceedings to inform and interpret the right to
defense counsel, etc). Additionally, regulations on the right to
defense counsel have remained many shortcomings. Inproper
regulations of the Criminal Procedure Code have made
unfavorable for the defense counsel to participate in defense
effectively. Taking the following as examples: regulations on
issuing defense counsel certificatel; the right to be informed of
time and place of interrogation; right to collect documents
related to the defense; right to meet with the client who is in

provisional custody; inappropriate remuneration for the
appointed counsel, etc.
2.3.2.2. Shortcomings in the application of the law
This content reflects the negative attitude, qualification and
logical thought of those conducting criminal proceedings in
acknowledging the role of the defense counsel as involving in
criminal proceedings. In addition, the surveyed statistics have
reflected quite sufficiently the qualification as well as
consciousness of the responsibility of the defense counsel as
involving in criminal proceedings. Such statistics have shown
that this is a matter in need of concern and remedy for the

19

purpose of improving the effectiveness of defense. Limitation
and lack of social knowledge and legal understanding of the
accused is also a cause restraining the defense and the
improvement of effective guarantee of the right to defense
counsel.
In conclusion: On the basis of studies and analyses in
Chapter 2, it can be hereby given an overview of main contents
relating to the guarantee of the right to defense counsel in
Vietnamese criminal procedure laws as follows:
- The right to defense counsel is a constitutional right and
it has been recognized by the Criminal Procedures Code as a
basic principle directing proceeding activities of competent
authorities.
- The time of which the right to defense counsel arises has
been stipulated in a very limited manner. This right is only
applied when a person receives the decision to initiate criminal

proceedings against the accused. In case of arresting persons,
defense counsels shall participate in the procedure from the
time on which the custody decisions are issued. To the crime of
infringing upon national security, the defense counsel may
participare in the procedure from the time of termination of
investigation. The right to have defense counsel is guaranteed
in stages of pre-trial, court of first trial and court of appeal.
- The accused is not warned of the right to keep silent.
- The participation of the defense counsel relies on the will
of the accused. The defense counsel is chosen by the accused
by hiring one or more persons to defend them.
- The appointment of defense counsel is considered as a
compulsory obligation with respect to the competent authorities
in the two following cases: the accused or defendant charged
with offenses punisable by death penalty; or the accused or
defendant being minors or persons with physical or mental
defect. However, it would not be compulsory if the accused or
defendant have themselves asked for the help of the defense

20

counsel. In this case, the accused may request to change or
refuse the defense counsel appointed by the competent
authorities.
- Fee paid for the defense counsel in case of appointment
shall be paid by the State. The accused are those poor and not
subject to the right to appoint the defense counsel.
It is likely to say that the right to defense counsel under the
laws of Vietnam has been guaranteed quite sufficiently and in
line with contents provided in international Treaties regarding

human rights. In particular regulations, however, there is an
existence of many unclear and inconsistent points that has led
to the fact that the application of laws in reality has faced many
difficulties. The regulations on the right of the accused as
participating in criminal proceedings can be taken as an
example. These difficulties should be amended and
supplemented soon for the purpose of better ensuring rights and
interests of the accused. Chapter 2 presented unsound
regulations in laws and practical application of the right to
defense counsel and also pointed out causes of such difficulties.

Chapter 3
GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO
DEFENSE COUNSEL UNDER GERMAN CRIMINAL
PROCEDURE LAWS
3.1. Overview of the German criminal procedure
3.1.1. Sources of law
Germany is a federal nation with the existence of two legal
systems of federal laws and state laws. However, the laws
governing the field of crime and criminal procedure are
consistently stipulated within the federal as a whole and its
states.
German laws emerged from continental European laws,
and sources of applicable laws are Constitutions and Acts, of
which the Criminal Procedure Code plays the main role

21

governing criminal procedure activities. Additionally, the
European Convention on Human Rights, awards of the

European Court of Human Rights and other documents of the
European Union (Charter on Human Rights 2007) have
currently been applicable as a main source of laws in Germany
in terms of criminal procedure issues. As such, reseaches on
German laws must be put in contrast with regulations and
standards of the Council of Europe and European Union.
Furthermore, the activity of interpreting laws has also played an
important role in orienting the application of laws.
3.1.2. The stages in the procedure and the role of defense
counsel
German criminal procedure is a particular manifestation of
the traditional inquisitorial model. Nevertheless, like other
European countries, German criminal procedure has currently
has evident improvements in procedure models and recognized
many outstanding points of the adversarial procedure model.
However, the method of handling cases has still remained
specific characteristics of the inquisitorial model. Police and
prosecutors play the main role in the investigation in the pre-
trial stage. The court will hold the trial upon the request for
prosecution of the prosecutors. The judge takes the initiative
role to control the trial court with the participation of the jurors.
Generally, regulations on German criminal procedure have
many similarities to Vietnamese laws. The right to defense
counsel is guaranteed by not only regulations of German
criminal procedure laws but also by international standards. As
such, the accused and their defense counsel have been quite
adequately equipped to participate in the defense. However, the
role of the defense counsel in German criminal procedure has
been accurately recognized only in the stage of judgment of the
trial court. Certain rights of the defense counsel in the

interrogation of police have been still limited even the laws
have recognized that the right to defense counsel must be

22

guaranteed in all stages of proceedings (Article 137.1 of the
Criminal Procedure Code).
3.2. Aspects of guaranteeing the right to defense counsel in
German criminal procedure
3.2.1. Time of guaranteeing the right to defense counsel
It is practicably shown that no permission for the
participation of the defense counsel during the interrogation of
police is a kind of breach of contents with regard to the
guarantee of the right to defense counsel as provided in Article
6.3(c) of the European Convention on Human Rights. Even
though the German Criminal Procedure Code has recognized
that this right is guaranteed in all stages of the criminal
procedure, in practice, this right is still violated. Under
precedents of European Courts on the right to defense counsel
and provisions of the German Criminal Procedure Code, the
accused must be informed of the right to defense counsel and
must be given an interpretation of the right to keep silent and
right not to declare evidences against himself/herself. This is
one of differences between the German criminal procedure and
Vietnamese criminal procedure.
3.2.2. Mandatory appointment of defense counsel
It is a specific characteristic of the German criminal
procedure to absolutely dignify the participation of the defense
counsel in a number of cases such as: the accused who is
charged with felony crimes, or the accused who is a juvenile, a

person who has physical or mental defect and other exceptional
cases. As such, the institution on mandatory defense counsel is
rigidly observed, even the right to waive the defense counsel of
the accused can be waived. In line with the mandatory
character, the competent authorities are obliged to appoint a
defense counsel even when the accused has no request. This
obligation is also applied to the cases where the accused cannot
afford to hire defense counsels themselves.
3.2.3. Legal aid

23

Legal aid is a matter given to those accused who cannot
afford to hire defense counsels themselves. The State will
provide a support that the accused may immediately have a
defense counsel, however, such legal aid must be returned if
he/she receives a verdict of guilty. On the contrary, if he/she
receives a verdict of not guilty, the obligation of returning will
be released. However, the policy of supporting legal aid is only
applied in the trial stage. This is a particular of the legal aid
policy in Germany.
3.2.4. Selection and Waiver of defense counsel
The defense counsel will be selected by the accused if he is
affordable to hire. However, this right is limited if the defense
counsel is appointed in case where the participation of the
defense counsel is mandatory.
3.2.5. Effective defense
Aspects of guaranteeing the effective defense include:
3.2.5.1. The right to access the case file
3.2.5.2. The right to adequate time and facilities for

preparation of the defense
3.2.5.3. Communication between the defense counsel and
his/her client (who is in provisional custody)
3.3. Actual status of the guarantee of the right to defense
counsel under the German criminal procedure laws
Entanglements existing in German criminal procedure laws
regarding the guarantee of the right to defense counsel are
mainly provisions on the accused’s rights in the investigation
stage. Restrictions on the the time of participation of the defense
counsel as well as on the policy of legal aid supporting indigent
people have not actually guaranteed the implementation of the
right to defense counsel in practice. In addition, the belief to
disregard the role of defense counsel as well as negative sides
existing in capacity, qualification and morality of lawyer teams
are those restraining the guarantee of the right to defense
counsel.