LAWYERS’ DIFENSIVE ACTIVITIES IN CRIMINAL TRIALS AT FIRST INSTANCE

MINISTRY OF EDUCATION AND TRAINING

MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

NGO THI NGOC VAN

LAWYERS’ DIFENSIVE ACTIVITIES IN CRIMINAL TRIALS AT
FIRST INSTANCE
Specialty: Criminal law and criminal procedural law
Code: 62.38.01.04

ABSTRACT OF DOCTORAL THESIS ON LAW STUDIES

HÀ NỘI - 2016


Training Institution: HANOI LAW UNIVERSITY

Supervisor :

1. Assoc. Prof. Dr. Nguyen Van Huyen
2. Dr. Phan Thanh Mai

Opponent 1: Assoc. Prof. Dr. Ho Trong Ngu
Opponent 2: Dr. Nguyen Ngoc Chi
Opponent 3: Dr. Nguyen Duc Phuc

This thesis will be defended before the University Thesis Evaluation Board, at
Hanoi Law University on dated / / 2016.

This thesis can be studied more at:
1) National Library of Vietnam;

2) Library of Hanoi Law University


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PREAMBLE
1. The Imperative of Research
Recently, especially since the introduction of the Constitution of 2013,
the issue of expanding democracy and strengthening the rule of law in order
to effectively protect human rights and citizen rights has became more and
more urgent, and considered as the task of the whole society. To promote
judicial work as meet the need of new situation, on 01/02/2002, the Politburo
of Vietnamese Communist Party issued the Resolution No. 08-NQ/TW on
Several Key Tasks in the Judicial Sector in the Near Future. The Resolution
indicates leading points such as, “ensuring reasoned debates with lawyers,
defence counsels and other persons involved in the proceedings ...”; “judicial
bodies are responsible for supporting lawyers to participate in the
proceedings: joining the interrogation of the accused, reading case files,
openly debating at court hearings ...”.
Lawyers’ defensive activity during criminal proceedings in general and
in the stage of first instance trial in criminal cases in particular is practical
necessity. When participating in the first instance trial stage, as provided by
the law, lawyers are responsible for conducting different professional
activities so as to effectively defend the accused or defendant. However, the
defensive activity of lawyers in practice recently has remained many
shortcomings and deficiencies. The reasons of this situation are various,
including the insufficiency of relevant legal regulations, the inadequacy of

public awareness as well as in the organization and implementation of
defending of related people in reality.
While studying a long list of reference documents, I recognize that
there are quite many works, consisting of doctoral theses, master theses,
research projects at grassroots or ministerial levels, and journal articles
written by scientists or practitioners, which investigate and analyze the roles
of defence counsels in criminal proceedings generally, the guarantees of
human rights, the accused and defendants’ rights, or discuss narrower topics.
However, no work or research directly and intensely focuses on the actual
activities of lawyers, particular their actions in defending offenders.
Therefore, academic research examining the matter of theory concerning the
defensive activity of lawyers during the stage of the first instant trial in
criminal proceedings, evaluating the actual profession of practicing lawyers
in this stage, and proposing feasible solutions to enhance the effectiveness of
lawyers’ defensive activity are significantly meaningful in both theoretical
and practical aspects.


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2. The Purpose and Tasks of Research
The purpose of this research project “Lawyer Defensive activity during
the stage of the First-instant Trial in Criminal Cases” is to provide
recommendations for revising the legal regulations concerning lawyers’
defensive activity and solutions for enhancing the effectiveness of lawyers’
defensive activity in criminal proceedings, which are based on studying the
issues of theories, legal regulations and practically defensive activity of
lawyers during the stage of the first-instant trial in criminal cases.
For the purpose stated above, this thesis has the following tasks:
- Clarifying the theory about the defensive activity of lawyers during

the stage of the first instant trial in criminal cases, consisting of formulating
the concept of lawyers’ defensive activity in the first-instant trial in criminal
cases, the contents of defensive actions, and the features, purposes, and
significances of this activity.
- Clarifying the legal basis and the actual situation of lawyers’
defensive activity during the stage of the first instant trial in criminal cases
(results, shortcomings, problems and reasons of those shortcomings and
problems).
- Providing practical solutions for ensuring and enhancing the
effectiveness of lawyers’ defensive activity during the stage of the firstinstant trial of criminal cases.
3. The Object and Scope of Research
The object of research: The research object embodies theoretical issues
about defensive activity of lawyers during the stage of the fist instant trial of
criminal cases, legal provisions relating to lawyers’ defensive activity, and
the practical situation of lawyers’ defence.
The scope of research: The thesis focuses on clarifying the concept of
lawyers’ defensive activity during the stage of the first instant trial in
criminal cases, legal basis, content, features and significance of this activity;
clarifying the necessity to improve the law on the defensive activity of
lawyers and the orientation and requirements for improving the law and other
solutions. The research analyses the content of defensive activity and its
reality during the preparation and at the court trial hearing criminal cases –
which exclude lawyers’ defence in special cases, such as in juvenile cases,
the cases conducted in summary procedures or after court hearings.
As for legal regulations, the thesis carefully analyzes specific
provisions concerning the defensive activity of lawyers in the Criminal
Procedure Code of 2003. In addition, the thesis also studies a number of
documents guiding the implementation of Criminal Procedure Code, and
other legal documents relating to the defensive activity of lawyers. An

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examination of international law on this issue is also in the thesis scope at the
level suitable to requirements and conditions of the study.
With regard to the practical situation of lawyers’ defence during the
stage of the first instant trial in criminal cases, it is evaluated through the
study of statistics of first instant trials having the participation of defence
lawyers between 2005 and 2014 and the actual defence of lawyers in several
provinces and cities, which are shown in the reports of Vietnam Bar
Federation, the Supreme People’s Court, the Supreme People’s Procuracy,
surveys and other collected data.
4. Research Methodology
Through this project, Marxist-Leninist’s theory about dialectical
materialism; the view of the Communist Party of Vietnam on human rights,
judicial reform and the rule of law, the state of the people, by the people, for
the people are applied as the research methodology. As for different aspects
or topics within the thesis, the author employs combined methods which are
suitable to research contents as the following:
- Using analysis and synthesis methods in all chapters of the thesis to
clarify the issues of theory, situation and solution.
- Applying the comparative method when studying the literature review
to provide an overall picture in both national and international scales,
comparing Vietnam’s regulations with international standards, and
evaluating the situation of defence lawyers participating in criminal
proceedings.
- Using the statistical method to synthesize the data related to defence
lawyers engaged in criminal cases, surveys, and interviews with practicing
lawyers and procedure-conducting bodies about the effectiveness of defence
lawyers’ activities.

5. The new contribution of the thesis
- Elucidating the theoretical issue about the defensive activities of
lawyers, such as formulating the concept of defensive activity, showing the
feature, significance and content of this action during the stage of the first
instant trial in criminal cases.
- Indicating shortcomings of the law on criminal procedures and
lawyers’ profession concerning the defensive activity of lawyers.
- Clarifying the actual defensive situation during the stage of the first
instant trial in criminal cases, and the reasons of inadequacies and
shortcoming concerning the defence of lawyers in this stage.
- Providing feasible solutions for law revision and mechanism for
practical implementation to improve the effectiveness of lawyers’ defensive
activities during the stage of first-instant trial of criminal cases.


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6. Scientific and Practical Significance of the thesis
This thesis complements and clarifies the theory about the defensive
activity of lawyers in general and in the state of the first instant trial of
criminal proceeding in particular. The thesis would be useful reference for
individuals and agencies who are interested in this topic, particularly, for law
makers when revising the Criminal Procedure Code and the Law on
Lawyers; and would be material for teaching and learning at institutions
having the function of training legal practitioners.
7. Structure of the thesis
Based on the purpose and research tasks, this thesis consists of four
main chapters as below:
Chapter 1: Literature review
Chapter 2: Theory about the defensive activities of lawyers during the

stage of the first instant trial in criminal cases
Chapter 3: Legal basis and the situation of lawyers’ defensive activitys
during the stage of the first instant trial in criminal cases
Chapter 4: Solutions for improving the effectiveness of lawyers’
defensive activity during the stage of the first instant trial in criminal cases.
In addition to four main chapters, the thesis also includes an
introduction, conclusion and a list of references.


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Chapter 1
LITERATURE REVIEW
1.1. NON-VIETNAMESE LITERATURE
On both national and international forums of scientific research, there
are quite many works of foreign authors mentioning the right to defence and
the right to have a defence counsel. The noticeable works include: Books
“Brownlie's document on the right man” by Lan Brownlie, GuyS. GoodwinGrill (2010) and “Toward an international criminal procedure” by Christoph
Saffeling (2003); and journal articles “Basic Principles on the role of
lawyers” by Adam Parker (2008), and “The development of criminal law in
the United States” by GS.James, B.Jacobs, Warren.E. Burger posted on the
website of the United State Department of State. In addition, there are several
studies relating to the procedural rights of offenders, which are approached
from the international perspective on human rights, including journal articles
by Pham Thi Thanh Nga about the rights of juvenile offenders under the
Convention on the Rights of the Child, such as “Developments in the Right
to Defence of Juvenile Offenders since Vietnam’s Ratification of the
Convention on the Rights of the Child” in East Asia Law Review (2014), and
“Juvenile Offenders in Vietnam and the Right to Defence” in Youth Justice
(2015).

With regard to basic theory about procedural models, it should
mention the book “Comparative Criminal Justice System” Philip.L.Reichel
(Vietnamese translation by the Institute of Legal Science); the book “The
outline of the United State legal system” (translated from the original English
Outline of the U.S. Legal System, Congressional Quarterly, Inc., 2001);
“Analyses of American and French legal systems” by James Claude and
Joseph Daly; “The patterns of criminal proceedings around the world” by
Jean -Philippe Rivaud; “Research on the organization and operation of the
judicial system in China, Indonesia, Japan, Korea and Russia” implemented
by the United Nations in 2010. In relation to operational matters of defence
lawyers in the stage trial of criminal cases of first instance, the book
“Advocacy in criminal cases in the Russian Federation” posted on the
website: William Burnham in 2012, Professor of Law;
in the document at the International Workshop on Criminal Procedure Code
of 2003 and the rights of defence lawyers in 2012, Tian Wen Chang authors Chinese experts published the article “Ideas and overall assessment about the
bill of revised criminal procedure law in China”.


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1.2. VIETNAMESE LITERATURE
1.2.1. Group of works concerning to the theory of the thesis
The studies on human rights include the fowling books: “Human
Rights - a multidisciplinary approach and interdisciplinary Jurisprudence” by
Professor Vo Khanh Vinh, ed., Social Sciences Publishing House, Hanoi
2010 (2 volumes); “The mechanism for the protection of human rights” by
Professor Vo Khanh Vinh, ed., Social Sciences Publishing House, Hanoi
2011; “Textbook of theory and law on human rights" by Prof. Dr. Nguyen
Dang Dung, Dr. Vu Cong Giao and MA La Khanh Tung eds., the publishing
house of National University of Hanoi, 2011; and the article "The theoretical

issues of protecting human rights by law in criminal justices”, Ass. Prof. Dr.
Le Cam in the Journal of Courts, issues No. 11, 13 and 14/2006. These
studies directly on ensuring the right to defence counsel are still modest;
particularly, no research has been done under the view of comparative law.
In Vietnam, the studies which concern to ensure the right to defence and the
right to have defence counsel include: “Studying the right to defence in
criminal procedure law and practices in Vietnam” by Nguyen Hung Quang
and partners, 2012; Master thesis “The Implementation of the law on the
right of the defendant or accused to defence in Vietnam, by Nguyen Tuong
Vi; PhD thesis “Guarantee of the accused person’s right to defence counsel –
A comparative study of Vietnamese, German and American criminal
procedure law” by Luong Thi My Quynh; the book “Ensuring the right to
defence of the accused” by Pham Hong Hai, 1999; the book “Legal status
and relationship of defence counsel to the accused and the defendant in
criminal proceedings” by Nguyen Van Tuan, 2003.
The scientific works on the theory and the function of criminal
proceedings, including the function of exoneration are also significant why
conducting the thesis. These include the studies: “The Model of Vietnam’s
criminal proceedings”, a research project carried by the Supreme People’s
Procuracy; the doctoral thesis, “The functions of criminal proceedings in
Vietnam: Matters of theory and practice” by Nguyen Manh Hung; and the
article “Defining accurately the basic functions of criminal proceedings:
Accusing, defending and judging” by Ha An.
The research on the procedures, mechanisms for the implementation of
procedural activities, including the defensive activity of defence lawyers are
also related to the thesis, especially the study of negotiation and litigation.
These include doctoral thesis “Principles of litigation in Vietnam’s criminal
proceedings: The issues of theory and practice” by Nguyen Van Hien, 2010;
journal articles “Several issues of litigation in criminal proceedings” by Le
Tien Chau, in Legal Sciences Journal, 2003; “The litigating principle in the

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systems of basic principles in criminal proceedings” by Associate Prof. Dr.
Le Cam, in the Journal of Jurisprudence, 2004; “The litigating situation and
issue if enhancing the role of lawyers in litigation under the requirement of
judicial reform” by Dr. Nguyen Van Tuan, in Journal of Democracy and Law
2010; “Ensuring the rights of the defendant in the trial with extended
litigation" by Dr. Nguyen Van Huyen, in Journal of Democracy and Law,
special issue in litigation of 2003, and master thesis “Litigation in the first
instant criminal trial, the theoretical and practical issues” by Luu Binh Duong,
2004.
1.2.2. Group of works directly related to the thesis contents
The matters that are directly related to the thesis subject were studied in
a range of scopes and levels. At the general level, there are “Textbook on
criminal procedures” of Hanoi Law University, “Textbook on criminal
procedures” of the Judicial Academy, as well as other institution of legal
training; “Textbook on skills of dealing criminal cases” of the Judicial
Academy (2001), “Textbook on skills of participating in dealing criminal
cases” – which were revised in 2013- by Judicial Academy; “Textbook on
specialist skills of Lawyers in a number of criminal cases”, 2015. Intensive
studies mentioning to this issue can mention doctoral thesis “Implementation
of the right to defence of the accused and defendants in criminal
proceedings” by Dr. Hoang Thi Son, Hanoi Law University, 2003;
specialized reference book “The role of lawyers in criminal proceedings” by
Dr. Nguyen Van Tuan, the National University publishing house, 2001;
scientific project “Improving the criminal procedures to enhance the
effectiveness of defence lawyers” by Hanoi Law University, 2013.
Professional legal journals have published related articles, such as in Journal

of Jurisprudence, issue 5/2003, Associate Prof. Dr. Pham Hong Hai, Institute
of State and Law, National Centre for Social Sciences and Humanities has
“The position of the defence lawyers in the court hearing”; the Journal of
Procuracy, issue 24 (12-2005), Associate Prof. Dr. Lawyer Pham Hong Hai
has “The situation of lawyers’ defence and defence counsel over a year of
implementation of the Criminal Procedure Code, 2003”; in Journal of
Democracy and Law, issue 5 (2008), Master Nguyen Van Truong, the
Central Military Court, has an article “Discussion about ensuring lawyers’
equality while litigating at court hearings”; and Master Le Van Thao, the
University of Vinh has “Appreciating the professional activities of lawyers
and litigation at court trials in order to enhance the quality of hearing
criminal cases in our country today”, issue 4 (2009).
As for works about legal provisions on defence lawyers’ activities there
are the article "The situation of legal regulations on the activities of lawyers


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participating in court procedures as defence counsel, and direction for
perfecting” in People's Court Journal, issue 8 (2012) by Master Vu Huy
Khanh, Legal Department, Ministry of Public Security; “Advantages and
disadvantages of defence lawyers during the stage of court trial, and some
solutions” in People's Court Journal, issue 18 (2012) by master, Judge
Nguyen Huu Chinh, Deputy Chief Justice, Ha Noi People's Court; “Activities
of lawyers in the trial stage” in the People's Court Journal, issue 19 (2012) by
master Dao Thi Nga, deputy director of the Appeal Court of the Supreme
People's Court in Hanoi and master Nguyen Tri Chinh, Head of statistical
diversion of the Appeal Court of the Supreme People's Court in Hanoi;
In the proceeding of the international conference about the Criminal
Procedure Code and the rights of defence lawyers in early 2012, there are

two noticable papers: “Improving regulations on defence counsel in Criminal
Procedure Code of 2003 to meet the requirements of judicial reform” by Dr.
Le Huu The, Deputy Head of the Supreme People's Procuracy and master Le
Thi Thuy; and “Improving provisions of Criminal Procedure Code of 2003
about guarantees of the right of lawyers in defence” by Lawyer Nguyen Huy
Thiep, Deputy Head of Hanoi Bar. Besides the above works closely related
to the thesis, there are a number of works published in magazines anso
mention to the topic, such as “The role of defence lawyers in the
investigation stage of criminal cases” in Journal of Public Security, issue 5
(2006) by Dr. Nguyen Van Huyen; “Vocational training of lawyer profession
- important task of the Ministry of Justice” in Journal of the legal profession,
issue 3 (2006) by Dr. Nguyen Van Huyen; “Improving regulations on
defence counsel in the Criminal Procedure Code in 2003 to meet the
requirements of judicial reform” by Dr. Le Huu The, Deputy Head of the
Supreme People's Procuracy, posted on www.liendoanluatsu.org.vn; “The
role of defence counsel in criminal proceedings under the models of several
countries” by Dr. Nguyen Ngoc Khanh - Deputy editor of the Journal of
Prosecucy, posted on www.tapchikiemsat.org.vn; “Ensuring the right to
defence” of Phan Thuong and Tien Hieu, published on www.phapluattp.vn;
“Right to counsel: "Barrier" by humans”, posted on www.phapluattp.vn;
“Ensuring the right to defence counsel during the stage of court hearings” by
Thu Hang, posted on www.dangcongsan.vn; “Assessing report about the
situation of ensuring the right to defend, and the amendments and
supplements of the 2003 Criminal Procedure Code” published by Vietnam
Bar Federation, posted on www.liendoanluatsu.org.vn; and “Psychological
features of the defensive activity”, posted on www.luathoc.cafeluat.com.
As for the papers focusing on theoretical issues, these are “The legal
status and relationship of defence lawyers with the accused and defendants

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in criminal procedures” by Dr. Nguyen Van Tuan, Journal of Democracy and
Law, issue 11 (2008); “Discussion about the compulsory participation of
defence counsel in criminal procedures” by Dr. Nguyen Thai Phuc, Journal
of Prosecuracy, issue Spring (2009); “Improving the status of the defence
counsel in criminal trial” by Nguyen Ngoc Khanh, Journal of Jurisprudence,
issue 7(2008); “Discussion about the compulsory participation of defence
counsel in the investigation in criminal proceedings” by Nguyen Truong Tin,
Journal of State and Law, issue 12 (2010); “The participation of defence
counsel in proceedings under the Criminal Procedure Code of 2003 by
Nguyen Duy Hung, Journal of Legal Sciences, issue 3 (2004). The scientific
studies about the actual situation of defence in practice include a number of
articles, such as "The defence counsel in criminal cases” of Dr. Nguyen Mai
Bo, in Journal of State and Law, issue 2 (1999); “Several theoretical issues
and practices in the implementation of legal provisions on ensuring the rights
of the lawyers participating in criminal and civil proceedings” by Dr. Phan
Trung Hoai, Journal of Peeple’s Procuracy, issue 4 (2007); “The operational
status of defence lawyers, defence counsel over a year of applying the
Criminal Procedure Code”.
In addition, Vietnam Bar Federation also organised some conferences
about defence lawyers’ activities, such as “Judicial reform and preventing
wrongful conviction in criminal proceedings” held in Hanoi November 2 – 3,
2009; and “Improving the provisions of the 2003 Criminal Procedure Code
on ensuring the right to defence and the right of lawyers to practice" held in
Hanoi, March 29 – 30, 2012.
1.3. ASSESSMENT OF RESEARCH RELATED TO THE THESIS
TOPICS AND ISSUES TO BE CONTINUED
1.3.1. The concept, feature, content and meaning of the defensive activity
of lawyers in the stage of the first instant trial in criminal cases

Most of the scientific published works have no definition on the
concept of the lawyers’ defensive active during the stage of the first instant
trial in criminal cases and do not clarify the feature, content and meaning of
this activity. Quite many works just formulate and develop the concept of the
right to defence and defence counsel, and clarify the role of the defence
counsel or lawyers. The connotation activity is not adequately focused,
especially the concept of the defence counsel or lawyers’ defensive activities
in a particular stage, such as the state of first instant trial in criminal
proceedings. Therefore, studying about the concept of lawyers’ defensive
activity during the stage of the first instant trial is necessary. In this thesis,
the author formulates the concept and determines the meaning of the
activities of defence lawyers during the stage of the first instance trial in


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criminal cases by clarifying matters of subjects, mechanism, features, time,
legal basis, purpose and significance of this activity.
1.3.2. The situation of lawyers’ defensive activity during the stage of
first-instant trial in criminal proceedings
Among published works, the issue of current situation of defence
lawyers’ activity is received the less attraction by scientists. Most authors
provide general comments about the quality of defence that the defence is not
qualified without convincing evidence and adequate argument to prove those
statements. In particular, many articles focus only on “activity” in general,
without specifically identify the quality of work and specific actions that
defence lawyers need to perform. The reasons of inadequacy in lawyers’
defensive activity are also a focus of research. Many articles indicate that the
defence lawyers’ activities is not really effective because of many reasons,
including the inadequacy of legal regulations; the weakness in capacity to

carry professional task of procedure-conducting persons and lawyers; the
issues of lawyers’ professional ethics; policies; mechanisms for monitoring
and handling professionals breaking the law. Most of publications analyze
and comment on legal provisions on the guarantee of the accused persons’
right to defence; the procedural position of defensce counsel and their rights
in practising, and the advantages and disadvantages of practicing lawyers.
However, they lack specific analyse and adequate evaluation about the actual
professions of defence lawyers while carrying out particular actions of
defence. Therefore, this thesis focuses on clarifying the legal basis of
lawyers’ defensive activities, evaluating the practical defence under Criminal
Procedure Code of 2003 and the new provisions in the Criminal Procedure
Code of 2015 – which comes into the effect on 01 July 2016; investigating
the actual defence of lawyers through the period of trial preparation and court
hearing during the stage of the first instant trial in criminal proceedings; then
identifying the reasons of shortcomings of lawyers’ defensive activity in
general, and during the stage of the first instant hearing. Hence, in this thesis,
studying about the situation of practical defence during the stage of the first
instant trial in criminal proceedings is new, having no overlap of published
works. The thesis refers to published works in relevant points.
1.3.3. Solutions for improving the quality of defence lawyers’ activities
during the stage of the first instant trial in criminal cases
To the date of writing, the majority of publications focus mainly on
solutions for improving legal regulations, which are closed to ideas that
author analyses in this thesis. However, most of these works only propose
solutions without suitable analyses and evaluation about relevant issues.
These issues include mechanisms for practical implementation of the law, the


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penalties applicable for those breaking relevant laws, the enhancement of the
professional capacity, knowledge and skills of procedure-conducting persons
and lawyers; and the promotion of offenders and their representatives’
awareness of the right to defence. The significant difference of this thesis
compared with published works is that the thesis not only names solutions
but also critically examines the matters of theory and practical applications of
each suggestion and recommendation given. At the same time, the thesis also
provides new solutions, such as: enhancing the responsibility of procedureconducting persons in ensuring the implementation of lawyers’ rights; strictly
handling the acts of obstructing defence lawyers conducting their
professional activities; enhancing the quality of defence lawyers; monitoring
and detecting procedure-conducting persons who violate the law and do not
support lawyers in defensive activities then applying punishment; monitoring
and detecting law violation and applying punishment to lawyers breaking the
law; enhancing the policy as well as the education and dissemination of the
law.
Conclusion of Chapter 1
Although there have been many published works mentioning activities
of defence lawyers in both domestic and international scales, because of
limitations on the scope of the study and research levels, the issues relating to
lawyers’ defensive activity during the stage of the first instant trial in
criminal cases have not often presented separately but in some aspects while
analyzing the defence in general. In separate studies focusing on lawyers’
defensive activities during the stage of the first instant trial in criminal cases,
the specializing theoretical issues have not been addressed in a
comprehensive and systematic way. Therefore, as a comprehensive study on
lawyers’ defensive activities during the stage of the first instant trial in
criminal cases, the thesis deeply studies, meeting requirements of a
comprehensive, systematic and novelty works in this field in Vietnam.
Chapter 2
THEORY ABOUT LAWYERS’ DEFENSIVE ACTIVITY DURING

THE STAGE OF THE FIRST INSTANT TRIAL IN CRIMINAL
CASES
2.1. CONCEPT OF LAWYERS’ DEFENSIVE ACTIVITY DURING THE
STAGE OF THE FIRST INSTANT TRIAL IN CRIMINAL CASES
2.1.1. Defensive activity of lawyers
2.1.1.1. The concept of the defensive activity of lawyers
Defensive activities of lawyers are the tasks carried out by lawyers in
the conformity with the law in order to remove a part or all the accusation
given by investigating bodies, procuracies or victims, and find out the


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grounds for mitigating criminal liability applying to the accused and
protecting their rights and legitimate interests.
2.1.1.2. Features of the defensive activity of defence lawyers
The defensive activity of lawyers has the following basic features:
- The defensive activity of lawyers represents their professionalism,
compliance with ethics rules, no stereotypes, based on lawyers’
responsiveness, flexibility and dynamism, representing adequate behaviours,
respecting procedure-conducting persons, and other people participating in
the proceedings; and showing the commitment to their client (the accused);
and convincing the trial panel to protect the best for his client.
- The defensive activity of lawyers also represents the independence
and personal self-responsibility before clients about their profession.
- The defensive activity of lawyers depends on the time when lawyers
participating in processes. They are not compulsory but being proposals and
recommendations, much depending on procedure-conducting bodies.
- The defensive activity of lawyers is based on the basis of principles
and procedures prescribed by the law on the rights and obligations of the

defence counsel.
2.1.1.3. The legal basis of lawyers’ defensive activities
- The fundamentals principles showing the direction of defence are
“Guaranteeing the right to defence of the accused”; the principle of litigation
in court hearing, and other principles ensuring the effectiveness of lawyers’
defensive activities.
- Criminal Procedure Code also specifies the orders and procedures for
receiving and resolving information about crime as well as the process of
resolving criminal cases. The settlement of every criminal case has to
conduct in accordance with the proceedings provided by Criminal Procedure
Code.
- The regulations about defence in general, and the rights and duties of
lawyers in particular are the important legal basis for the lawyers conducting
professional activities of defence.
2.1.1.4. Purposes of defensive action of lawyers
- Firstly, defensive activity of lawyers aims to protect the rights of the
accused persons, in other words, to protect their client’s legitimate rights and
interests.
- Secondly, defensive activity of lawyers aims to minimize law
violations by procedure-conducting bodies, Active defence lawyers also
achieved


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- Finally, defensive activity of lawyers targets to clarify the facts of the
case, contributing to comprehensively and lawfully address the cases,
without crime left untrieds or doing injustice to the innocent.
2.1.2. Lawyers’ defensive activity during the stage of the first instant
trial in criminal cases

2.1.2.1. The stage of the first instant trial in criminal cases
The stage of the first instant trial in criminal cases is a period in
criminal proceedings, in which the Court in its jurisdiction conducts review
and hearing of the cases, and gives judgment or procedural decision in
accordance with the procedural provisions law. The stage of the first instant
trial in criminal cases has the following basic features:
- Stage of the first instant trial in criminal cases starts when the case file
with the indictment's are transferred from the Procuracy to the competent
court. After the case is processed, the chief judge assigns a court judge (or a
group of judges) to examine case files and participate in the proceedings at
the trial;
- Stage of the first instant trial in criminal cases starts ends upon the
expiry of the appeal or protest;
- The mission of the stage of the first instant trial is to review and solve
every issue of the case in accordance with law; protect the socialist
legislation, the interests of the State, citizens’ legitimate rights and interests.
- The main entity conducting proceedings at this stage is the court. The
court is only competent holder to hear the case under the procedure of the fist
instant trial of criminal cases. In addition, in this stage there is the
involvement of other entities in accordance with the law, such as prosecutors,
defence counsel, victims, and witnesses.
2.1.2.2. The content of defensive activity of defence lawyers during the
stage of the first instant trial in criminal cases
While the court preparing for trial, the lawyer has to show his
dynamism and professional responsibility. Whether the lawyer had
participated in the earlier stage of the proceedings, the lawyers still have to
delve into records, meet the accused to fully understand the contents of the
case and the circumstances that Procuracy and investigating body Agency
previously used as evidence against them, and support them in term of the
law. During the time studying case file at court, when the decision of bring

the case to trial has not yet announced, the lawyer might present his
preliminary opinion on the cases, request the preside judge to carry out the
various procedural acts stipulated by law. Along with these activities, before
the trial, lawyers also carry out other activities such as preparing defence


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arguments, planning their questions at the hearing, and discussing with the
accused client.
At the trial, on the basis of their rights stipulated by the law, lawyers
carry out activities aiming at clarifying the points in favour of the accused,
denying or minimizing the disadvantages for the accused to protect their
legal rights. Lawyers do ask, debate and make necessary recommendations at
the trial.
The activity of defence lawyers may divide into two specific groups.
The first includes activities performed on the basis of the provisions of
criminal law, such as: proposing a change of procedure-conducting persons,
witness expert or interpreter; collecting documents, objects and
circumstances related to the defence; presenting documents, objects and
requirements; meeting the accused at detention; reading, writing and copying
documents in the case file; questioning and arguing at the trial. The second is
other professional activities that are quite flexible, depending upon lawyers’
ideas, such as studying the case file; exchanging proposals with the court,
preparing defence argument. These two groups have close ties with each
other, complement each other and together aim to best protect the rights of
the accused persons during the stage of the first instant trial in criminal cases.
From the above analyses of the relevant concepts, features, contents,
legal basis and the purpose of lawyers’ defensive activity during the stage of
the first instant trial in criminal cases, it can define that the defensive activity

of the lawyers during the stage of the first instant trial in criminal cases is the
professional actions conducted by lawyers during the stage of the first instant
trial in criminal cases, in compliance with the law and lawyers’ professional
ethics, in order to avoid the conviction, indicating the innocence of the
accused persons, or mitigate criminal responsibility, protect their rights and
interests of the accused persons, contributing to determine the facts of the
case.
2.2. THE SICNIFICANCE OF THE DEFENSIVE ACTITY DURING
THE STAGE OF THE FIRST INSTANT TRIAL IN CRIMINAL CASES
2.2.1. Political and social significances
- Conducting the defence is to implement the guidelines and policies of
the Party, and the law of State concerning the protection of human rights,
judicial reform and the construction of the rule of law.
- Contributing to adequately implementing and respecting the law,
protecting human rights in criminal proceedings.
- Contribute to ensuring that justice executed, ensuring the
implementation of equality, and democracy in criminal proceedings, without
doing injustice to the innocent, thereby ensuring equity in society.


15

- Helping those who are involved in resolving the case to understand
their rights and responsibility; helping citizens to understand the bad results
if violating the law.
2.2.2. Legal Significance
- Defensive activity of lawyers is not only an effective tool to protect
the legitimate rights and interests of the accused, but also importantly
contribute in determining the facts of the case, make sure the cases solved in
the way of justice, comprehensiveness and lawfulness, ensure no injustice to

innocent individuals.
- Defensive activity of lawyers contributes actively to implement the
duties of criminal proceedings that are crime prevention, accurate detection,
fast and fairly address of criminal offense, no crime left hided, injustice to
the innocent, contributing to the protection of the socialist regime, the
interests of the State, citizens and organizations’ legitimate rights and
interests, protect the legal order of the Socialist, as well as educating people
to obey the law, prevent and fight against criminal offenses.
Conclusion of Chapter 2
Lawyers’ defensive activity during the stage of the first instant trial in
criminal cases is conducted in accordance with their rights set forth in the
Criminal Procedure Code and the professional ethics of lawyers. In this study,
the defence is understood as the defence activity of defence counsel,
including lawyers in presenting the evidence and documents in order to reject
a part or all of the charges given by the investigating body, procuracy or
victim, or mitigating criminal liability and ensuring the rights of accused
persons. Based on such understanding, the thesis formulates the concept that
defensive activity of the lawyers during the stage of the first instant trial in
criminal cases is the professional actions conducted by lawyers during the
stage of the first instant trial in criminal cases, in compliance with the law
and lawyers’ professional ethics, in order to avoid the conviction, indicating
the innocence of the accused persons, or mitigate criminal responsibility,
protect their rights and interests of the accused persons, contributing to
determine the facts of the case. Moreover, the thesis examines basic features,
legal grounds, purposes, significance, and contents of the defensive activity
of the lawyers during the stage of the first instant trial in criminal cases.
Chapter 3


16

LEGAL BASE AND CURRENT SITUATION OF DEFENSIVE
ACTIVITY OF LAWYERS DURING THE STAGE OF THE FIRST
INSTANT TRIAL IN CRIMINAL CASES
3.1. LEGAL BASIS OF DEFENDANT ACTIVITY OF LAWYER
DURING THE JUDGEMENTAL STAGE IN THE FIRST CASE TRIAL
IN CRIMINAL CASES
3.1.1. Legal relationship between the lawyer and the accused /
defendants during the stage of the first instant trial in criminal cases
3.1.2. Legal basis for lawyers to conduct defensive activity during the
stage of the first instant trial in criminal cases
The right of defence counsel in general and of the lawyer is detailed at
articles 56, 57, 58 and some provisions in other articles in chapters about
orders and procedures of Criminal Procedure Code of 2003. These
regulations are formed from constitutional principles, and contribute to the
legal basis for defence counsel in criminal proceedings. However, in
accompany with these rights, the lawyers also have some responsibilities.
Excluding the advantages and progress, the defence in criminal
proceedings under Criminal Procedure Code of 2003 there are several
shortcomings. The law provides some rights of lawyers but there is a lack of
mechanism for effective implementation of these rights. Especially, Criminal
Procedure Code of 2003 has no provisions about important rights that
provide lawyers to carry out defence, such as the right to collect evidence; in
case of difficulty occurred, the lawyers have the right to be supported from
procedure conducting bodies while finding evidences, such as summoning
the witness or other organisation to supply lawyers with evidences; the right
to receive all procedural decisions related to their accused clients, to
interview and interrogate witnesses and victims during stages. Some of the
current procedural articles do not give lawyers favour for approaching the
process of criminal case; the law formulated the right of lawyer to ask

procedure-conducting bodies to response to the right request of lawyer but
forget to set a time limit or a due date for these responses. Violating the
rights of lawyer in criminal proceedings from the prosecutors is sometimes
very serious but these violations are often not recognised as a law violation.
Addressing such shortcomings and inadequacies concerning the defence in
the Criminal Procedure Code of 2003, the Criminal Procedure Code of
2015 has significant changes, creating the legal path for lawyer in carrying
out their duties. Nevertheless, the new advanced provisions just provide
the right on paper, but the actual implementation in reality is very
important.
3.2. THE CURRENT SITUATION OF LAWYERS’ DEFENSIVE


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ACTIVITY IN THE STAGE OF THE FIRST INSTANT TRIAL IN
CRIMINAL CASES
3.2.1. The situation of lawyers participating in defence in criminal
cases
3.2.2. The current situation of lawyers’ defensive activity during
the preparation of hearing and at the first instant trial of criminal cases
3.2.2.1. The current situation of lawyers’ defensive activity during the
stage of preparing for the first case trial in criminal cases
* Current situation of lawyers studying case files
Besides good points, the action of studying case files of lawyers exist
some inadequacies. Lawyer did not find out the violation of criminal
procedures, and did not aware that these violations would cause bad effects
on their clients, violating the legal rights and benefits of their clients or not;
reading and fully understanding the indictment, report on investigating
results, interrogative minutes, interview minutes and declaration minutes are

very important to determine if the actions of their accused clients are crime
or not, but had not been conducted by lawyers. Even the problems of
compensate payment related to the criminal behaviour of their clients had not
been fully considered and conducted effectively.
* Current situation of meeting and discussion between lawyers and the
accused
The meeting and discussion with the accused persons of lawyer remain
several shortcomings and inadequacies as the below.
- Some lawyers had no a right plan to discuss with their clients, leading
to missing out some important evidences that is good for their clients.
- Some lawyers could not fully discuss with their clients because of the
shortage of the time.
- Sometimes, some lawyers posed unclear questions or used
dialect/local words that their client could not understand well or made a
wrong answer while lawyers did not recognize that problem.
* Current situation of collecting relevant documents, case files,
materials, details related to the defence of lawyers
In practice, the activity of data collection, including documents, case
files, materials, details related to the case for the defence conducted by
lawyers existed inadequacies, such as lawyers could not decide which
documents that should be collected, the plan to collect date is unclear, the
way to conduct is no convenient for those who provide information, and the
collection of data in a number of circumstances is very difficult.
* Current situation of lawyers providing the court certain suggestion
In fact, lawyers’ activity of suggestion to the court has some limitations.


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In details, some lawyers did not know how to compose requests or

recommendations in both format and content of the papers convincingly
therefore they had been rejected by the judge; did not state clearly the reason
why the case should not be returned for re-investigation while there is a lack of
evident but only minor mistake, not seriously violating criminal procedures;
gave suggestion on merging cases or split cases when there was not enough
legal base/condition; did not suggest the judge to ask for more witnesses, did
not consider thoroughly deterant measures that are best for the accused client
in case suggesting changes.
* Current situation of lawyers plan about questioning at hearing
The activity of lawyers in planning questions at the trial had some
shortcomings. In details, some lawyers did not catch the main content of the
case, the criminal behaviour and crime prosecuted by the procuracy; some
complicated questions to ask their clients are not well prepared and discussed
therefore it can get a contradictive answer or even cause more difficulties to
clients. Planning to interrogate is not well prepared and not clear, detailed,
enough, correct, proper towards interviewees, and did not forecast of the
response in different situations in the trial.
* Current situation of lawyers preparing for logical argument
However, the preparation of lawyer had some limitation such as the
logical argument to defend for client is not well prepared and had a form of a
slogan, lack of evident for the advantage of clients. Some cases, lawyer cited or
quoted wrongly legal articles while making the defence.
3.2.2.2. Current situation of lawyers’ defensive activity at hearing the
first instant trail in criminal cases
* Current situation of lawyers’ defensive activity at the beginning
section in the first instant trial
Lawyers’ defensive activities at the beginning section in the first instant
trial remain several inadequacies. In details, lawyers did not early detect the
absent of some witnesses whose declaration statement badly affecting the
accused client though their statement is illogical and not compromise with

other evident in the case, did not find out immediately the defect in
procedure of the prosecutive side in opening the court, did not give suggest
to stop the court in case if there is not enough legal conditions to open the
trial, and did not ask to stop the trial to another day in case needed to protect
their clients, did not suggest that their clients have their rights in criminal
procedures, did not reject disadvantages given by prosecutors.
* Current situation of lawyers’ defensive activity at the section of
questioning at the first instant trial
In fact, lawyers’ defensive activity in the questioning stage is still having


19

some limitation caused by some lawyers. In details, the lawyer did not help
their clients legally in their rights and duties in proceedings, such as to protect
their clients from prime interrogative, forced interogative, or how to response to
questions that violate to dignity, humanity of the clients. Lawyers did not
require the judge to stop action that violate criminal procedures during the
interogation, did not have the right question to confirm some details supporting
clients to reduce their crime, or new details to decrease the criminal
responsibility of client in the case; clarified details on the accused legal records,
and motivation, purpose, attitute towards, and environment of the crime; all
these factors can help to reduce the accused persons’ responsibility.
* Current situation of lawyers’ defensive activity at the section of
debate in the first instant trial
Besides lawyers conducting effectively their defence at the section of
debate in the first instant trial, there are still a number of lawyers who do not
show their capacity in this activity. In details, they did not prepare logical
reasons for defending, even the primarily reasons, to use in the court; did not
act flexibly in adding more evident and advantage details for the accused or

to re-orient the way of defendant in the court to protect their clients in proper
way of court. During the debate at hearing, instead of giving new evident to
protect the client or to reduce the crime of their clients, some lawyers use this
valuable time just to judge the behaviour of prosecutor and make suggestions
which were not based on the benefit of clients but cause more troubles. Some
of the logic for defence is not logical, only analyse and assess the situation of
the accused to recommend that the accused clients’ behaviour is not criminal
and did not display adequate evident or relevant documents to protect clients
in convincing the hearing panel.
* Current situation of lawyers’ defensive activity at the section of
announcing court conviction
Quite many lawyers affirmed that even during the section of
announcing court conviction, the lawyer also have some activities to support
their clients. The lawyer should follow guidance from the judge in conviction
stage, carefully listen to catch all details of contents of the conviction and the
real characteristic of sentence, especially in all decision/conviction related to
their clients so that they can discuss with their clients on the right to appeal to
a higher court determined by law. In case needed, the lawyer can prepare for
an appeal to a court of appeal determined by law.
3.3. REASONS FOR SHORTCOMINGS IN DEFENSIVE
ACTIVITY IN THE STAGE OF THE FIRST INSTANT TRIAL IN
CRIMINAL CASES
3.3.1. Reasons concerning legal regulations


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Firstly, Criminal Procedure Code of 2015 provides no articles to
guarantee the active collection of evidences by lawyers when other
organisations do not collaborate in this activity and do not supply them with

evidences. The law neither assign procedure-conducting bodies to inform
lawyers every related decision and document that they are defended about the
rights and benefits of their clients (the accused, the temporary prisoner) and
documents on the change of the course of criminal procedure. The regulation
is also not defined when the lawyer can ask for new witnesses or suggest for
the court, and show new evidences, and call for new witness to the court. To
do all of these they need to ask permission from the judge. The regulations
that allow the lawyer to take part in the investigation is not very clear; the
regulation on permission of lawyer to photocopy of documents, files of the
case at different stage of the trial is not well defined. The regulations
confirm that lawyers can only interview and talk to their clients under the
permission of the interviewer (the police and the prosecutors) who may
restrict the right of the lawyer because the permission depend so much on
the perception and subjective opinions of detectives/interviewrs. The
regulation has no articles about the responsibility of procedure-conducting
bodies to inform the lawyer about the time, place of interview so that the
defence lawyer can implement their right. There is a lack of regulations
that allow lawyers to meet with their accused privately during the legal
procedure, and these meetings and discussions should be confidential, and
allow the lawyers to meet their clients are many times as needed, whenever
they need, no limitation of the durations of meeting, and keep secret (not
under control) of the content of the meeting and discussion. There should
have regulations to guarantee for meeting, communicating of lawyer and
client privately and independently; and these meeting are a duty of the
prosecutive side (investigating organisations, prosecutive organisations, the
court and the prison organisations). There is still a lack of regulation on the
exemption for criminal responsibility and civil responsibility and do not exist
the regulations that request procedure-conducting bodies to respect the result
of defendant side, to consider thoroughly of the evident (document, items)
display on the court by lawyers, to accept the logical defence of the lawyer.

Violation of the right of lawyer from the side of prosecutors must be
considered as a greater violation of criminal procedures and those violations
exclude in the court as evident to prove for the case. Criminal Procedure
Code has no article saying that there is a sanction for those activities
performed by procedure-conducting persons violated these regulations, in
which procedure-participating persons have no responsible for those
mistakes.


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Secondly, there is no adequate sanction to connect individual
responsibility of the defence lawyers; or the legal responsibility of investigating
bodies, procuracies, in terms of ensuring the participation of lawyers during
criminal proceedings.
Thirdly, some of procedural regulations are not insure the equality before
the court, and strangeness of court debates. Regulations about the debate at
court hearing do not guarantee of procedure-conducting persons with its
function of blaming, and the lawyer side/defendant side with their role as
protective side/defendant side, and the equal role of lawyer compared to
prosecutor and responsibility of lawyer as one objective side to protect their
clients.
3.3.2. Other reasons
3.3.2.1. From lawyers’ side
- During their defensive activities, many lawyers did not show high
responsibility for their clients, the professional skills of these lawyers are
also not at the same levels, some are in high level but some are still at low
level.
- Because of lacking understanding the rights and duties provided by
the law, the lawyers did not carried out the right and duty of themselves to

protect and defend for the accused.
- A number of competent lawyers did not have a competitive
environment to work; lawyer’s associations or offices are not well organised
in the locality; these offices are not distributed equally at different localities
therefore can not meet the request of people living in the rural and remote
areas of some provinces.
3.3.2.2. From the procedure-conducting bodies’ side
- many procedure-conducting bodies prevent lawyers from their
professional activities, did not support them to carry out the defensive
activities as requested by law; perception of prosecutors on the activities of
lawyers at the court is not right, and also their capacity did not meet the
requirement of their jobs, in some cases.
- Professional ethics and interaction of procedure-conducting persons
remain many inadequacies.
- During the performance in some court, lawyers can be attacked on
their life, health, humanity, honor and association of lawyers had a very
strong reaction on these cases but finally their was no right answer by the
prosecutive organisations, that makes people lost of their thust towards the
right of lawyers and a lost of trust of the whole society on the role of lawyer
in the legal and judiciary system.
3.3.2.3. Legal education and dissemination


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In fact, actions on propaganda of law and regulations towards people
are not very effective. Some organisations did not have a right perception of
this propaganda, did not know the role, the importance of these activities;
therefore they did not eager in doing it; did not find out more effective ways
to do it by the right model, method, way of doing which are appropriate with

the real situation at their locality; even the staff to conduct these activities are
mainly not professional and did not show a high concern with this job.
Conclusion of chapter 3
Defensive activities of lawyers in the stage of the first instant trial in
criminal cases not only produce effectiveness for the accused persons, but
also contribute to clarify the criminal case that help the court doing the right
thing for the right decision and conviction based as provided by the law.
Although there are still difficulties the defensive activities of lawyers meet
the requirements of defence performance and achieved some good results.
However, the quality of defensive activity during the stage of the first instant
trial in criminal cases remains poor or inadequate. The reasons for
shortcomings include both subjects and object reasons, such as the
unclearness and insufficient of criminal procedure law and other related
regulations; poor awareness about professional knowledge, skill and ethics of
procedure-conducting bodies, lawyers as well as regular individuals in
general, and the accused persons particularly.
these activities of working under an unclear condition of criminal
procedure and other related regulations besides the restrain on capacities of
some prosecutors and some lawyers and of the citizens and the accused.
Chapter 4
SOLUTIONS FOR STRENGHTENING THE QUALITY OF
LAWYERS’ DEFENSIVE ACTIVITIES IN THE STAGE OF THE
FIRST INSTANT TRIAL IN CRIMINAL CASES
4.1. THE REQUIREMENTS OF JUDICIAL REFORM AND THE
ISSUE OF STRENGHTENING THE QUALITY OF LAWYERS’
DEFENSIVE ACTIVITIES
4.2. SOLUTIONS FOR THE PERFECTION OF CRIMINAL
PROCEDURE REGULATIONS
- Firstly, perfecting legal regulations on the rights and duties of defence
counsel, mechanism for implementing of the law, such as adding new articles

about the orders and duties of procedure-conducting bodies in terms of
guaranteeing the right for the lawyers to meet their accused clients.
Guarantee the procedure of meeting between lawyer and their clients in new
regulation, and clarify the right of procedure-conducting persons to organize
the meeting of lawyer and the accused persons detained. The law should have


23

a clear regulation on procedure that guarantee the right to read, to photocopy
for defense counsel; this clear regulation must guarantee the right of lawyer
and have a right sanction applicable to procedure conducting persons who
violate these regulations; sanction of the lawyer is also needed to their
responsibility. The Criminal Procedure Code should have an article that
allows lawyers to be present at the first time while police interview or
interrogate the accused or arrested persons in order to protect the
objectiveness and accuracy of the confession.
- Secondly, promoting the principle of debate at court hearings,
conducting judicial rights; regulating the responsibility of procedureconducting persons in informing all people who conduct the defense.
- Thirdly, regulating the responsibility and specific sanction of bars,
lawyer association and lawyer offices if they do not appoint lawyers to
defend the accused persons as requested by the procedure-conducting bodies;
adding the cases that required appointing the compulsory defense and the
duty of the government in payment for these cases and in those cases that the
lawyers need to be there in the first interview of the accused.
4.3. OTHER SOLUTIONS
4.3.1. As for lawyers
It is need to establishing large numbers of lawyers who are influent in
law, good at professional tasks and ethics, meeting the requirement of
protecting the objective truth in the period that Vietnam focus on building a

jurisdiction government. Increasing the number of defence counsel with high
quality to take part in defending the accused for all court trial in not only big
cities but also in anywhere across the country. The defence lawyer in the
court must be considered as one party at the same level as the prosecutor.
Increasing professional knowledge of lawyer and their professional skills and
ethics is essential. Facilitating lawyers’ capacity in real court and practical
issues; creating favourite working environment for high ability staff to join
the association of lawyer is also needed. It needs to enforce regulations on
legal career and professional path. Strengthen effectiveness and efficiency of
lawyer career and management of this profession, governmental management
on lawyers and lawyer professional, and managers on lawyer career.
Facilitate the demand to use legal services of person, organisations. The issue
is facilitating policies on recruiting lawyers with high capability in profession.
Supply citizens and organizations with enough information and make it easy
for them to get access to information of activities of the lawyers. Create a
policy on incentive for legal staff working at rural areas, areas with low
socio-economic condition. Let these lawyers to get a higher important role in
policy making process, in building and implementing the law, in contributing