1. Who are the person on temporary detainment and person in detention?

In criminal proceedings, the terms "person on temporary detainment" and "person in detention" are often confused, as both relate to preventive measures. However, these two subjects have different legal statuses during the proceedings.

• Person on temporary detainment

A person on temporary detainment is an individual held in urgent situations, caught in the act of committing a crime, apprehended under an arrest warrant, or who voluntarily turns themselves in and is subject to a detention decision. A detained person may be managed at a detention facility for the duration of the detention, with the possibility of extending the detention as stipulated by the Criminal Procedure Code. According to the Criminal Procedure Code of 2015, amended and supplemented in 2017, the period of detention is stipulated to be no more than 3 days from the time of the detention decision; however, it may be extended twice, each time for no more than 3 days. 

• Person in detention 

A person in detention is someone held in custody at a detention facility during pre-trial period, with the possibility of extending the pre-trial detention as per the provisions of the Criminal Procedure Code. Person in detention include the following:

• Accused persons; 

• Defendants; 
• Individuals sentenced to imprisonment or death whose judgements have not yet taken legal effect or are pending enforcement;
• Individuals in custody for the purpose of extradition. 

2. What rights do person on temporary detainment and person in detention have? 

Although person on temporary detainment and person in detention are suspected of committing crimes and subject to investigation, criminal law still safeguards their human rights and civil rights. Article 9 of the Law on Temporary Detention and Temporary Custody of 2015 stipulates the rights of person on temporary detainment and person in detention as follows: 

“1. Person on temporary detainment and person in detention have the following rights:

a) To have their life, body, property protected, and to have their dignity and honor respected; to be informed of their rights and obligations, as well as the regulations of the detention facility;

b) To exercise the right to vote according to the provisions of the Law on Elections of National Assembly Deputies and Deputies of the People's Council, and the right to vote in referendums as specified in the Law on Referendums;

c) To be assured of adequate food, accommodation, clothing, personal belongings, medical care, spiritual activities, sending and receiving letters, gifts, books, newspapers, and documents;

d) To meet with relatives, defense lawyer, and consular representatives;

đ) To receive guidance, explanations, and assurances for exercising the right to self-defense, to request defense lawyer, and to receive legal assistance;

e) To meet with a legal representative for the purpose of carrying out civil transactions;

g) To request release upon the expiration of the temporary detention or custody period;

h) To file complaints or denounce acts of law violation;

i) To be compensated for damages in accordance with the provisions of the Law on State Compensation Liability if unlawfully detained or held;

k) To enjoy other civil rights  unless restricted by this law or other relevant laws, except in cases where those rights cannot be exercised due to their temporary detention or custody status.”

Thus, although person on temporary detainment and person in detention may have certain fundamental rights restricted – such as freedom of movement, the right to engage in transactions, communication rights, and the right to express religious beliefs – the law still ensures that they retain certain essential rights. In this, the right to self-representation or to requests a defense lawyer  is a particularly important right guaranteed by law for person on temporary detainment and person in detention. This helps them have the right to seek support from individuals with expertise and knowledge of the law to protect their legitimate rights, clarify the objective truth of the case, and ensure that the proceedings are conducted fairly, transparently, and in accordance with procedural regulations.

3. Who has the right to appoint a defense lawyer for person on temporary detainment or person in detention ?

Criminal law ensures that person on temporary detainment and person in detention have the right to self-defense or to appoint defense lawyer to safeguard their rights and legal interests during proceedings. However, due to being managed at detention facilities, person on temporary detainment and person in detention  may face challenges in finding a qualified and experienced lawyer to represent them. This can directly affect their rights during the verification, investigation, prosecution, and trial processes. Therefore, to ensure the right to defense for person on temporary detainment and person in detention, the Criminal Procedure Code of 2015, amended in 2017, stipulates:

"Article 75. Choice of defense lawyer

1. The  defense lawyer is chosen by the accused person, their representative, or relatives."

Therefore, the following individuals have the right to appoint a defense lawyer for person on temporary detainment or person in detention:

• Person on temporary detainment and person in detention: In cases where person on temporary detainment and person in detention request defense lawyer, the investigating agency is obligated to forward this request to their defense lawyer, representative, or relatives. If the person on temporary detainment and person in detention has not requested a defense lawyer , during the first statement of the person on temporary detainment or the first interrogation of the person on temporary detainment, the investigator or the competent officer must explain their right to a defense and clearly ask the person on temporary detainment or the person in detention whether they wish to have defense lawyer , and their response must be recorded in the official minute
• Representative of the person on temporary detainment and person in detention: Currently, there are no specific regulations regarding the entity of a "representative" in criminal proceedings. Based on civil law provisions, a representative includes both legal representatives and authorized representatives by power of attorney. Accordingly, the legal representative of a person on temporary detainment or a person in detention has the right to retain defense counsel to protect their legal rights and interests. Upon receiving the request for a defense lawyer  from the representative, the investigating agency must promptly notify the person on temporary detainment and person in detention, seek their opinion, and record it in the minutes. 
• Relatives of the person on temporary detainment and persons in detention: According to point e, clause 1, Article 4 of the 2015 Criminal Procedure Code, it is explained: "Relatives of the participants in the proceedings, […] are individuals who have a relationship with the participants in the proceedings, […] including spouses, fathers, mothers, fathers-in-law, mothers-in-law, fathers-in-law, mothers-in-law, adoptive fathers, adoptive mothers, biological children, adopted children; paternal and maternal grandfathers, paternal and maternal grandmothers, biological brothers, biological sisters, biological younger siblings; great-grandfathers, great-grandmothers, uncles, aunts, and biological nephews and nieces."

Accordingly, in order to request the appointment of a defense lawyer to participate in the case, the relatives need to submit a written request for the defense lawyer along with documents proving their relationship to the competent authority conducting the proceedings. The competent authority conducting the proceedings is obliged to receive and promptly notify the person on temporary detainment or person in detention so that they can provide their opinion about requesting a defense lawyer.

Additionally, criminal law also stipulates cases where the competent authority conducting the proceedings must require the Bar Association, the State Legal Aid Center, or the Vietnam Fatherland Front and its member organizations to appoint a defense lawyer for the person on temporary detainment and person in detention. Specifically, Article 76 of the Criminal Procedure Code provides regulations on the appointment of defense lawyers as follows:

"1. In the following cases, if the accused, their representatives, or their relatives do not appoint a defense lawyer, the competent authority conducting the proceedings must assign a defense lawyer on their behalf:

a) The accused, defendant for a crime for which the Criminal Code prescribes a maximum penalty frame of 20 years of imprisonment, life imprisonment, or death penalty;

b) The accused person has a physical disadvantage and cannot defend themselves; a person with a mental disorder; or a person under 18 years old.” 

These are the two cases in which the investigating authority is required to appoint a defense lawyer for the person on temporary detainment and person in detention to maximize their rights and interests. However, in this case, the accused, their representative, or relatives still have the right to refuse the defense lawyer, and the refusal must be made in writing. 

4. When can a defense lawyer participate in the case for person on temporary detainment or person in detention?

The time when a lawyer is entitled to participate in criminal proceedings is specifically regulated in Article 74 of the Criminal Procedure Code 2015: 

"Article 74. Time for the defense lawyer  participate in proceedings 

“The defense lawyer  participates in proceedings from the time the decision to prosecute is made. 

• In cases of arrest or detention, the defense lawyer  participates in the proceedings from the time the arrested person is present at the headquarters of the Investigating Authority or the agency assigned to carry out certain investigative activities, or from the time of the detention decision. 
• In cases where investigation secrecy is necessary for offenses infringing upon national security, the Chief Prosecutor has the authority to decide when the defense lawyer may participate, which shall be from the end of the investigation.” 

According to this provision, a lawyer can participate in the defense for a person on temporary detainment and person in detention  as soon as they are present at the headquarters of the authority conducting the proceedings or from the time of the person on temporary detainment decision. Thus, lawyers are allowed to participate in legal proceedings from the early stages of a case to provide legal support for person on temporary detainment and person in detention , ensuring their rights and legal interests are fully protectedand contributing to the fairness, transparency, and legality of the proceedings. At the same time, the early involvement of lawyers also helps to prevent and correct potential misconduct or procedural activities.

After completing the registration procedures for defense, the competent authority conducting the legal proceedings will issue a Notification of the defense lawyer  to the lawyer. At this point, the lawyer has all the rights of a defense lawyer  as stipulated in Article 73 of the Criminal Procedure Code. Accordingly, one of the important rights that the law allows the defense lawyer  to exercise is to meet with the person on temporary detainment and person in detention . By meeting and discussing with person on temporary detainment and person in detention , the lawyer will help stabilize their psychological condition, grasp the overall context of the case and the legal situation of the person on temporary detainment and person in detention , thereby determining an appropriate defense strategy and carrying out necessary procedures to protect person on temporary detainment and person in detention .

5. What are the benefits of appointing a defense lawyer for person on temporary detainment or person in detention?

Appointing a defense lawyer from the early stages of custody or detention brings numerous benefits for person on temporary detainment and person in detention.

Firstly, it ensures the full protections of the legal rights and interests of person on temporary detainment and person in detention 

A defense lawyer, with specialized legal expertise, can assist the person on temporary detainment, person in detention  and their relatives in fully understanding their lawful rights and interests 

• Clearly explaining the rights of the person on temporary detainment and person in detention: the right to invite a lawyer to participate in testimonies sessions, interrogations, and other investigative activities; the right to express opinions; the right to remain silent, not to be compelled to provide self-incriminating evidence or compelled to confess guilt;…
• Providing guidance on how to communicate and give statements to the competent authorities to clarify the circumstances of the case and avoid unintentionally disadvantaging oneself: The law allows the accused to remain silent, not to be compelled to provide self-incriminating evidence or to confess guilt, but at the same time, the law provides that "A person who sincerely confesses and shows remorse" may be eligible for mitigating circumstances under Article 51 of the Penal Code 2015. When the lawyer participates in the defense, the lawyer will guideperson on temporary detainment, person in detention to exercise the rights permitted by the law while also not losing the chance to receive mitigating circumstances during the declaration process, collaborating with the investigative authorities, and avoiding situations that may unintentionally harm their legal position.
• Consulting appropriate defense strategies for person on temporary detainment and persons in detention: With their expertise and practical experience, during the process of interacting and discussing with person on temporary detainment, person in detention and their families, the lawyer will assess the issues and propose suitable defense options.
  • Pleading not guilty due to lack of sufficient elements constituting a crime
  • Pleading for reduced criminal liability:
  • Reclassifying the offense to a lesser charge;
  • Requesting a lighter sentencing bracket;
  • Applying statutory mitigating circumstances according to legal regulations.
• Consulting and assisting in gathering additional beneficial information for person on temporary detainment and person in detention: Once the appropriate defense strategy has been determined for the person on temporary detainment and person in detention, the lawyer will carefully research and assess all aspects of the case to identify information or details that may be favorable to the person on temporary detainment and person in detention. From there, the lawyer will draft necessary documents to collect and supplement important evidence, as well as request authorities to verify certain favorable issues in order to strengthen the legal basis and protect the legitimate rights of the person on temporary detainment and person in detention.
• Ensuring that all evidence is collected objectively and legally: Evidence is a key factor in criminal proceedings, determining whether a person is convicted or the degree of criminal liability they must bear. When a person on temporary detainment or in detention, they do not have favorable conditions to independently gather documents and evidence to defend themselves. Furthermore, they may not know what additional information or documents are relevant and favorable during the investigation process. Therefore, a lawyer plays a crucial role in assisting with the collection and use of favorable evidence to protect the legal rights of the person on temporary detainment and person in detention. In addition, the lawyers are granted the right to present opinions and assess the legality and objectivity of evidence collected by the competent authorities. By exercising this right, lawyers can determine the relevance of the evidence, identify points that are not objective or complete, and propose the supplementation of necessary evidence to ensure accurate resolution of the case, correct identification of the accused and the offense, and to prevent miscarriages of justice or failure to prosecute actual offenders..

Secondly, provide psychological support and help stabilize mental state

When detained or held in pre-trial detention, or when undergoing interrogation or confrontation, the accused often finds themselves in a state of confusion, fear, and disorientation, leading to their inability to clearly articulate the issues being asked, and even causing them to provide false statements or unfavorable testimonies against themselves due to losing their composure.

The presence of a lawyer during this stage not only helps the accused understand their rights and obligations but also contributes to stabilizing their mental state, to help them remain calm so they can give statements clearly and honestly with the authorities, contributing to clarifying the details of the case.

Thirdly, petitioning for the application or modification of preventive measures

Those being person on temporary detainment and person in detention are individuals currently under investigation, without clear evidence of their guilt or innocence. Therefore, the law stipulates that only in truly necessary circumstances may the competent authorities apply measures of temporary detention and detention. Defense lawyers will assess the necessity and legality of this decision and may propose alternative preventive measures that are more appropriate, such as bail, travel bans, or security deposits. Additionally, the law clearly stipulates the duration of temporary detention and pre-trial detention for investigation; if the stipulated period has expired and the prosecuting authority has not released the person on temporary detainment or the person in detention, or if there is no basis to extend the detention, the lawyer will may petition for release or recommend alternative preventive measures on behalf of the accused.. 

6. How can a lawyer be appointed during temporary detainment or detention?

• Guidelines for person on temporary detainment or person in detention to appoint a defense lawyer. 

During the initial testimonies of the person on temporary detainment or the first interrogation of the accused, the investigator or investigative officer must clearly ask the person on temporary detainment or the person in detention whether they wish to appoint a defense lawyer and record it in the minutes. When a person on temporary detainment or a person in detention wishes to invite a defense lawyer, the investigator or investigative officer will guide them in writing a request for defense lawyer.

Within 12 hours upon receiving the request for a defense lawyer from the person on temporary detainment, or within 24 hours for the request from the person on detention, the competent prosecuting authority is responsible for forwarding this request to the defense lawyer, representative, or relatives of the person on temporary detainment or person in detention . If the person on temporary detainment or a person in detention does not specifically name the defense lawyer, the competent authority will forward the request to their representative or relatives, so they can contact law firms and request for a defense lawyer. Once the lawyer receives the request, they will prepare the necessary documents and register to defend with the competent authority. If the registration documents are valid and do not fall under the circumstances for refusal of registration, the competent authority will issue a notification of the defense lawyer to the lawyer.

• Guiding representatives and relatives to invite a defense lawyer for the person on temporary detainment or a person in detention

As soon as the person on temporary detainment or a person in detention is present at the headquarters of the investigative authority, or the authority assigned to carry out investigative activities, the representatives and relatives can contact a defense lawyer or legal practice organizations to request legal presentation for the person on temporary detainment or a person in detention. When receiving and accepting the request to participate in defense, the Lawyer will prepare a defense registration dossier, which includes: a written request for a defending Lawyer; a notarized copy of the Lawyer's ID card. The dossier is submitted at the on-duty desk of the criminal investigation agency or at the guard office of the detention center or temporary custody facility. Immediately after receiving this dossier, the competent investigating authority must notify the person on temporary detainment or the person in detention to obtain their opinion regarding the appointment of the defense lawyer.

In the event that the person on temporary detainment or the person in detention agrees to appoint a defense lawyer, within 12 hours for person on temporary detainment and 24 hours for person in detention, the competent authority must issue a Notice of defense lawyer  and send it to the Lawyer. The notice remains valid throughout the entire legal proceeding.

7. What is the working process of the defense lawyer during temporary detainment or detention?

Each lawyer or law firm may follow a distinct working process. However, the general procedure for a lawyer involved in the defense of a person on temporary detainment or a person in detention typically includes the following steps:

Step 1. Receiving the request to appoint a defense lawyer from the person on temporary detainment or the person in detention , or from their representative or relatives;

Step 2. Conducting a preliminary review of the case, assess the client’s legal situation objectively, and provide a legal service quotation;

Step 3. Signing a legal service contract;

Step 4. Carrying out the registration procedure for defense;

Step 5. Obtaining the official notice of defense lawyer;

Step 6. Meeting and consulting with the person on temporary detainment or the persons in detention;

Step 7. Participating in defense activities to protect the client’s legal rights and interests to the fullest extent;

Step 8. Reporting the case outcome and finalize the legal service contract.

8. What are some important notes for the family and relatives of the person on temporary detainment or person in detention?

When a family member is held in temporary detainment or in detention for investigative purposes, it can be an extremely stressful and difficult time for all members of the family. The family serves as the primary emotional support for the person on temporary detainment or the person in detention during investigations conducted by competent authorities. Therefore, more than anyone else, the relatives of the person on temporary detainment or the person in detention need to remain calm and take appropriate legal actionsto protect the rights of the person on temporary detainment or the person in detention  throughout this process. Below are some important notes that the family and relatives should keep in mind when facing this situation:

• Contacting a law firm immediately and request a defense lawyer for  the person on temporary detainment or the person in detention. Early legal representation helps ensure the maximum protection of their rights and  provides of the person on temporary detainment or the person in detention. It also enables them to receive timely and comprehensive legal advice throughout the investigation process conducted by the authorities to verify the criminal acts of the person on temporary detainment or the person in detention.
• Relatives have the right to visit, send gifts, letters, and newspapers to person on temporary detainment or person in detention. However, it is necessary to understand the regulations of the person on temporary detainment and the person in detention facility to ensure compliance with the policies and regulations. Maintaining contact will help person on temporary detainment or person in detention  remain mentally stable.
• Providing complete and truthful information related to the alleged offenses of person on temporary detainment or person in detention, and coordinating with lawyers as well as the investigative agencies to expedite the case proceedings, clarifying related details, and ensuring the legal process is conducted transparently and lawfully.
• Remaining calm and patient throughout the process of a relative being detained or held in detention. This will not only have a positive impact on the mental state of the person on temporary detainment or persons in detention, but also enables them to stay calm and cooperate with the authorities and lawyers.
• Preparing mentally for unfavorable legal situations. Even with the involvement and support of a lawyer, the final outcome of the case still depends on the investigation process and the decisions of the prosecuting authorities. Relatives need to be mentally prepared to face any potential legal situations that may arise.

Thus, in order for the investigation and verification process to take place quickly and transparently, the coordination between the person on temporary detainment or person in detention, their relatives, and other relevant parties is very important. Relatives of the person on temporary detainment or person in detention need to pay attention to the aforementioned issues in order to provide the best support for the person on temporary detainment or person in detention throughout the legal proceedings.

The above provides all important information guiding the person on temporary detainment or person in detention to fully exercise the rights granted by law. Understanding one’s rights clearly and inviting a defense lawyer from the beginning will help the person on temporary detainment or person in detention maximize their legal rights during the legal proceedings. Please contact Phong & Partners for timely advice and assistance with any legal issues.