Attorneys are always facilitated to participate
Minister of Public Security To Lam, when answering questions from Vietnam’s highest legislative body National Assembly (NA)’s members s on November 6, said that in 2020, the investigating agency had issued more than 3,700 defense certificates at the request of the accused, increasing compared with previous years by nearly 2.5% and nearly 7,200 defense certificates issued in accordance with the Criminal Procedure Code. This figure was recorded to increase by more than 17%.
General To Lam recalled that his ministry issued Circular 46, stipulating that the police comply with the 2015 Criminal Procedure Code, ensuring the right to defend persons detained in emergency cases and arrest in the case of committing a crime in the act of committing the crime or by pursuing the detainee or accused person and protecting the legitimate rights and interests of the crime victims, litigants, denounced, or prosecuted persons.
Reality is the complete opposite?
Lawyer Pham Cong Ut, on the evening of November 9, told RFA that he noted that the 2015 Criminal Procedure Code contains progressive provisions, but in reality is not yet feasible.
According to the 2015 Criminal Code, there are 6 groups of subjects that must have lawyers if they request. That is the person who is denounced, the person proposed to prosecute, persons detained in an emergency, arrestees, detainees, the accused and the defendants.
Lawyer Pham Cong Ut further explained the relevant situation in Vietnam:
“The first three subjects, that is the accused person or other cases that I just presented as being caught in the act, or suspected, in almost all cases without lawyers. Or there is a lawyer but the authorities say that ‘we haven’t prosecuted, so we can’t put in the record of defense.’ That is the answer to most police agencies, including investigation police and ward police. The second problem, for criminals, they must have lawyers when they ask or for criminals with a frame of crime from very serious to particularly serious. Previously for particularly serious cases, it was required to have a lawyer, but now the amendment is ‘in very serious cases to have a lawyer.’ However, there are many particularly serious cases where one way or another even though a lawyer drastically is required, the subjects are forced to sign a so-called ‘attorney refusal.’ So, is there a certain pressure that Minister To Lam has known or not?”
Lawyer Nguyen Van Dai, on the same day of November 9, stated his opinion that the number of the defendant’s defense certificates requested and granted increased in 2020 through the statement of Minister To Lam should be understood as the number of people arrested and the number of cases are increasing in Vietnam, but the fact does not mean exactly as the minister explained.
As a specific witness, lawyer Nguyen Van Dai said that when the police came to his house to read his arrest warrant, in mid-December 2015, he requested a lawyer to protect him. However, the police and the staff of the Procuracy released a document with the signature of the Chief Procurator of the Supreme Procuracy, stating that in the case “related to national security” the request for a lawyer to be rejected.
Lawyer Nguyen Van Dai added that during the investigation, he required a lawyer in every interrogation. However, he was denied for the same reason.
The human rights lawyer expelled by the Vietnamese government to Germany for asylum in 2018 told RFA about the progress of his request for a lawyer:
“Then at the end of the investigation, they still found ways to delay my attorney from getting involved. Until my case was transferred to the Prosecutor’s Office, one day while I was waiting to see a lawyer sent in by my family but wasn’t able to see it, I was called out and they said I was permitted to meet an attorney. When I met the lawyer which was not hired by my family, he informed me that he was appointed by the Procuracy because my family did not hire a lawyer, because my case was related to a serious crime, so the bar association sent him. This lawyer emphasized that when the Procuracy sent a paper to the bar association, no lawyer dared to accept my defense and because he was the secretary of the bar association and when reading my files he felt that he admired me so he took my case.”
Lawyer Nguyen Van Dai realized he had been deceived. His family and family-mandated attorneys to legally represent him applied to the Investigation Agency and the Procuracy, but were ignored. And the lawyer appointed to represent him is the one who works for the security agency, with the aim of exploring the views on the case because from the conclusion of the investigation to the establishment of the indictment remained silent and held a defense position until he meets a lawyer.
“When the lawyer working for police met me, he used very nice rhetoric. At that time, I revealed how I wanted to be defended, how the case was when answering questions of this lawyer. And when I went to court, I was blamed because everything I prepared was distorted by the court. The Court has neither asked nor given me a chance to speak on the issues I have prepared. That is, they did not let my lawyers defend for me, but they also tried to deceive me to reveal my defense views prior to my trial in a bid to deal with me in the court.”
Commenting on the questioning part of Minister To Lam in the National Assembly session on November 6, lawyer Nguyen Van Dai emphasized:
“We must affirm with 100% certainty that the police, procuracy and courts of the Communist State of Vietnam are the tools of the Communist Party of Vietnam to rule the country. The Communist Party of Vietnam has also said that all such agencies serve the rights and interests of the Party. The Party charter has confirmed this. Therefore, whatever benefits the Party and the regime, they do it. Obviously, in the process of international integration and the increasing intellectual level of the people, of course, they gradually carried out reforms, but those reforms were not radical, only half-hearted.”
Lawyer Nguyen Van Dai said that under pressure from the people and domestic lawyers, the Vietnamese government was forced to reform, but not in accordance with the standards prescribed by the Constitution and the laws of Vietnam.
Agreeing with lawyer Dai, lawyer Pham Cong Ut said that the judiciary is abusing the legal issue. The most obvious examples are those cases that were accused of “disturbing public orders” which have nothing to do with “infringement of national security” but were grafted into “political cases” and the lawyer participation in the investigation process is also denied.
Radio RFA noted that through the Dong Tam case, a case of particular concern by the domestic and foreign public, lawyer Ngo Anh Tuan also reflected RFA about the difficulties of lawyers in approaching clients and case files during the investigation. In addition, the time they are exposed to and research the case file is also limited because it is close to the date of the opening of the first instance trial.
In one recent case study, lawyer Ha Huy Son, on November 5, told RFA that he had met his client, Mr. Tran Duc Thach at the detention center in Nghe An province. This is the first time after the end of the investigation phase, but lawyer Ha Huy Son is not allowed to copy the case file to serve as a defense, but only to rewrite.
Poet Tran Duc Thach is a human rights activist, a member of the Brotherhood for Democracy, arrested in April 2020 on charges of “Activities aimed at overthrowing the people’s administration” under Article 109 of the 2015 Criminal Code.
Lawyer Pham Cong Ut said that Vietnam’s judiciary is being pushed back, unlike General To Lam’s statements to the National Assembly: “Politburo’s Resolution 49 on judicial reform with a vision by 2020, the 15-year judicial reform program is considered to be completed. Then I do not consider judicial reform yet but is going backward. A setback on the judicial issue.”