PARTICIPANTS’ PAPERSLEGAL AID IN CRIMINAL JUSTICE IN VIET NAM
Luong Thi Van*

I. REGULATIONS ON LEGAL AID IN CRIMINAL JUSTICEIn Viet Nam, before 1997, the right to legal aid was generally recognized in the right to a defence. The
right to a defence is a constitutional right recognized in all versions of the Vietnamese constitutions. The
2013 Constitution stipulates: “Any person who has been arrested, held in custody, temporarily detained,
prosecuted, investigated, charged or brought to trial in violation of the law has the right to self-defend or toseek the assistance of defence from lawyers or other people” (Clause 4 of Article 31) and for the first time
recognizes: “The adversarial principle shall be guaranteed in trials” (Clause 5 of Article 103).
On 6 September 1997, the Prime Minister issued Decision No. 734/TTg on the establishment oforganizations providing pro bono legal services for the poor and policy beneficiaries, creating an important
legal basis for the emergence and development of a system of legal aid organizations. To flesh out Decision
No. 734/TTg, the Ministry of Justice promulgated and coordinated with other ministries and branches inpromulgating 15 legal documents quite comprehensively regulating legal aid organizations and activities;
guiding the establishment, organization and operation of legal aid organizations and their payroll, personnel
and material foundations; subjects, scope and domains of legal aid; building and development of a contingentof legal aid collaborators; management of legal aid and professional operations; and funding for legal aid
activities.
On 29 June 2006, a historic step forward in legislative activities in the field of legal aid was that the
National Assembly passed the Law on Legal Aid, raising the institutional level from the Prime Minister’s
Decision. The introduction of this Act consistently demonstrated the Party and State’s policy in providing
legal aid and legal support to protect citizens’ legitimate rights and interests, especially the disadvantaged
ones.
However, facing the new development requirements of the country, the implementation of the 2013
Constitution and many important new laws promulgated by the National Assembly, requirements for
institutional modification to improve the quality of legal aid were raised. Therefore, on 20 June 2017, the XIV
National Assembly approved the new Law on Legal Aid. The introduction of the Law on Legal Aid in 2017
marked an important milestone in perfecting the institution of legal aid in particular and implementing the2013 Constitution on human rights, basic rights and obligations of citizens in general, thereby continuing toaffirm that legal aid is an important element in the criminal justice system and the responsibility of the Statein ensuring human rights and citizens’ rights for legal aid beneficiaries.
The Criminal Procedure Code is an important legal document that is closely related to legal aid activities.
Article 16 of the Criminal Procedure Code 2015 stipulates:
An accused person is entitled to defend himself or be defended by a lawyer or another person.
Competent procedural authorities and persons are responsible for informing accused persons,defendants and litigants of all of their rights of defence, legitimate rights and benefits according
to this Law. Moreover, competent procedural authorities and persons shall provide explanations
and guarantee the implementation of all of such rights and benefits.
It can be said that this is an important principle for legal aid institutions. To ensure this principle, theCriminal Procedure Code 2015 has a number of provisions on legal aid such as: (1) Supplementing the* Legal Official, Department of Judicial Support, Ministry of Justice of Viet Nam.

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category of advocates as legal assistants to defend free of charge for policy beneficiaries; (2) Specifying the
responsibilities of the procedure-conducting agency related to the guarantee of the right to legal aid specified
in Article 71 (Responsibilities for announcement and explanation of rights and duties of participants inproceedings and assurance of their execution of such obligations and rights), Article 76 (Appointment ofdefence counsel) and articles related to assuring the rights and obligations of procedure participants; (3)Supplementing regulations on principles of conducting proceedings against persons under 18 years old(Article 414), including ensuring the right to a defence and legal aid.
At the same time, the Law on Temporary Detention and Custody also stipulates the rights and obligationsof persons held in custody and temporary detention to receive instructions and explanation and exercise
self-defence, ask for the appointment of defence counsel and legal aid (Point dd, Clause 1, Article 9).
To solidify the above provisions of the Law on Legal Aid, the Criminal Procedure Code, the Law on
Temporary Detention and Custody, in order to ensure the right to legal aid of persons arrested, detained andaccused, ministries have issued many specific guiding circulars such as the Circular of the Ministry of Public
Security,1 the Joint Circular of the Ministry of Justice, the Ministry of Public Security, the Ministry of
National Defence, the Ministry of Finance, the Supreme People’s Procuracy and the Supreme People’s Court.2
Up to now, it can be said that the legal framework on legal aid in criminal justice has been relatively
comprehensive, further affirming that legal aid is a legal institution associated with judicial institutions,establishing the State’s responsibility in ensuring human rights and citizenship for the disadvantaged groups
who cannot afford legal services and policy beneficiaries who need attention and help in specific cases
directly related to their legitimate rights and interests.

II. LEGAL AID PROVIDERS AND THEIR ROLE IN CRIMINAL JUSTICE:LEGAL AID BENEFICIARIES; FIELDS AND FORMS OF LEGAL AID PROVISION
A. Legal Aid Providers and Their Role in Criminal Justice
1. 	The Law on Legal Aid
According to the Law on Legal Aid, legal aid-providing organizations are state legal aid centres andorganizations participating in legal aid provision (including law-practicing organizations and legal counsellingorganizations signing legal aid contracts or registering to participate in legal aid provision in accordance with
Law on Legal Aid).
Legal aid-providing persons include: (i) legal aid officers; (ii) lawyers providing legal aid under contracts
signed with state legal aid centres; and lawyers providing legal aid as assigned by organizations participatingin legal aid provision; (iii) legal counsellors with at least two years’ experience in legal counselling inorganizations participating in legal aid provision; and (iv) legal aid collaborators.
2. 	The Law on Lawyers
In addition to the Law on Legal Aid, the Law on Lawyers also stipulates that lawyers have an obligation
to provide pro bono legal aid (at least four hours per year). Legal aid activities of lawyers according to the
Law on Lawyers are different from legal aid activities according to the Law on Legal Aid. Providing pro bono
legal aid to legal aid beneficiaries is not only an obligation but also a professional ethic of lawyers.
3. 	Role of Legal Aid Officers and Lawyers Providing Pro Bono Legal Aid in Criminal JusticeThe 2015 Criminal Procedure Code stipulates that legal assistants and lawyers have the following roles:(1) a defence counsel (Article 72), (2) a defender for the legitimate rights and interests of persons facing
accusations or requisitions for charges (Article 83), and (3) a defender for the legitimate rights and interestsof crime victims or litigants (Article 84).
1

Circular No. 46/2019/TT-BCA, dated 10 October 2019, by the Minister of Public Security.
Joint Circular No. 10/2018/TTLT-BTP-BCA-BQP-BTC-VKSNDTC-TANDTC, dated 29 June 2018, issued jointly by Ministryof Justice, the Ministry of Public Security, the Ministry of National Defense, the Ministry of Finance, the Supreme People's
Procuracy and the Supreme People's Court.
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B. Legal Aid Beneficiaries
According to the Law on Legal Aid, there are 14 groups of legal aid beneficiaries: (1) People withmeritorious service to the revolution; (2) members of poor households; (3) children; (4) ethnic minority people
residing in areas with extremely difficult socio-economic conditions; (5) the accused who are aged between
16 years and under 18 years; (6) the accused who are members of households living just above the poverty
line; (7) people experiencing financial difficulties who fall into one of the following cases: (i) natural parents,
spouses or children of fallen heroes or persons nurturing fallen heroes during their childhood; (ii) agent
orange victims; (iii) the elderly; (iv) people with disabilities; (v) victims in criminal cases who are aged
between 16 years and under 18 years; (vi) victims of domestic violence cases or matters; (vii) victims ofhuman trafficking under the Law on Human Trafficking Prevention and Combat; (viii) HIV-infected people.
C. Fields and Forms of Legal Aid Provision
In Viet Nam, legal aid is provided in law-related fields, except the fields of trade and commerce. Formsof legal aid provision include: (1) participation in legal proceedings; (2) legal counselling; (3) representation
beyond legal proceedings.

III. RESULTS OF LEGAL AID IMPLEMENTATION IN CRIMINAL JUSTICE
According to Report No. 141/BC - BTP, dated 14 July 2021, by the Ministry of Justice on the preliminary
review on five years of implementation of the Legal Aid Innovation Project for the period 2015–2025, from2016 to 2020, there were 310,081 legal aid cases nationwide, including 92,082 cases involving legal proceedings(accounting for 29.7 per cent of the total number of cases). The number of cases involving legal proceedings
increased gradually over the years (2016: 10,937 cases, 2017: 15,519 cases, 2018: 16,886 cases, 2019: 21,244
cases, 2020: 27,496 cases). In 2021 and 2022, despite the impact of the Covid-19 pandemic, legal aid providers
continue to exhaust all solutions and combine great efforts to achieve the core goal of carrying out the casewith high quality. As a result, the number of legal aid cases, especially those in legal proceedings in 2021,
2022 increased and reached the highest level ever since (33,1273 cases in 2021 and 32,0814 cases in 2022).
The quality of legal aid services has improved. Many cases of legal proceedings are effectively implemented
by legal aid providers with many cases being sentenced to lighter sentences or transferring crimes orchanging the penalty frame to a lower level than recommended by the People’s Procuracy. The participationof the legal aid providers team at procedure-conducting agencies assists the procedure-conducting agencies
and proceedings-conducting persons to objectively investigate, prosecute and adjudicate, handing out
sentences to the right person for the right crime and in accordance with the law. For legal aid beneficiaries
who are the accused or defendants, the case which involves legal aid providers helps them maintain peaceof mind and confidence because they have spiritual support and legal help. This result is demonstrated in theincreasing rate of successful and effective cases, the number of criminal cases accepted by the Trial Panelwith favourable circumstances for the defendant at the request of the legal aid officer, the assessment andrecognition of the procedure-conducting agencies and proceedings-conducting persons. According to statistics,
from 2018 (the year the Law on Legal Aid 2017 took effect) to the end of the first six months of 2020, 62 of
63 provinces had 8,389 successful and effective cases (accounting for 27.84 per cent5 of the total number ofcases of legal proceedings).
According to the report of the Vietnam Bar Federation, the number of legal aid cases (without divisionof field) that lawyers had performed from 2015 to 2022 is as follows: 7,250 (2015); 85,320 (2016); 18,022 (2017);
20,692 (2018); 12,835 (2019); 17,877 (2020), 7329 (2021); 10998 (2022 – reports from 50 of 63 Bar Associations).

3
Report No. 90/BC-CTGPL, dated 1 March 2022, by the Legal Aid Department, Ministry of Justice on summarizing legal aid
innovation in 2021 and tasks and working solutions in 2022.
4
https://tgpl.moj.gov.vn/Pages/chi-tiet-tin.aspx?ItemID=1920&l=Nghiencuutraodoi
5Report No. 141/BC - BTP, dated 14 July 2021, by the Ministry of Justice on the preliminary review of 5 years of
implementation of the Project of Legal aid Innovation for the period 2015-2025.

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IV. GENERAL AND PARTICULAR DIFFICULTIES AND CONCERNS RELATED TOLEGAL AID IN CRIMINAL JUSTICE FOR OFFENDERS AND VICTIMSFirstly, people’s ability to access legal aid services is still limited, so the annual number of legal aid cases
is still low compared to the number of people eligible for legal aid.
Secondly, there are legal restrictions to legal aid:
- 	 The right to legal aid has not been stipulated in the Constitution, so some legal aid providers andbeneficiaries are not deeply aware of the concept of legal aid in the proceedings, the right to receive
legal aid, and the responsibility of the competent authorities, especially the agency conducting theproceedings in ensuring the above right. Therefore, it is not possible to coordinate and create conditions
for legal aid practitioners, legal aid providing organizations and legal aid beneficiaries in ensuring theimplementation of legal aid rights of the beneficiaries.
- 	 The implementation of provisions of procedural codes and laws related to legal aid beneficiaries is not
as effective as intended.
Thirdly, although the quantity and quality of legal aid providers have been improved, they still cannot
meet the people’s legal aid demand. There are only 668 legal aid officers in 63 legal aid centres.
Fourthly, many organizations and individuals have not been mobilized to participate in legal aid activities
according to the provisions of the Law on Legal Aid (currently there are only 667 of 17,284 lawyers, 159 of
5,000 law-practicing organizations, 39 of 200 legal consultancy centres nationwide participating in legal aid
while lawyers and legal consultants have lots of knowledge and skills in legal aid in criminal justice for bothoffenders and victims).
Fifthly, although the beneficiaries of legal aid have been expanded (from 6 groups of beneficiaries to 14
groups of beneficiaries, according to the Law on Legal Aid 2017), those who are not eligible for legal aid
according to the provisions of the Law on Legal Aid and cannot afford to hire a lawyer to protect theirlegitimate rights and interests make up the majority of the population.
Moreover, in some criminal cases, particularly serious cases falling under the jurisdiction of provinciallevel investigating agencies, where the accused are the beneficiaries of legal aid, defence counsel must be
appointed according to regulations. According to the Criminal Procedure Code 2015, the investigating agency
often requests both the State Legal Aid Centre and the Bar Association to appoint defence counsel for theaccused. That leads to the case of both defence cases where the Centre and the Bar Association participate
in pro bono defence for the same beneficiaries in a case. In cases with a large number of defendants, thenumber of lawyers and legal aid officers involved is quite large, causing a waste of state resources (costs ofremuneration for defence counsel from the state budget).

V. SOME ORIENTATIONS AND SOLUTIONS
A. Enhancing Access to Legal Aid Services for People- 	 Researching the implementation of a mechanism for legal aid providers to be on duty at headquarters
or by phone at a number of procedure-conducting agencies (police, courts) so that persons held incustody, accused and defendants can get early access to legal aid.
- 	 Set up and maintain a hotline on legal aid so that the legal aid beneficiaries can call whenever there isa dispute or legal problem.
- 	 Promoting the propagation and dissemination of information on legal aid to the people, to help people
access and directly enjoy their rights as prescribed by law; diversifying and innovating/creating
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methods of communication about legal aid (via newspapers, radio, television, internet; drawing/acting
plays to introduce legal aid; etc.) which are suitable for each specific area, people's intellectual level,
especially suitable for ethnic minority groups.
B. Amending and Supplementing a Number of Provisions of the Law Related to Criminal Proceedings- 	 The right to legal aid should be recognized in the constitution.
- 	 It is necessary to stipulate the time and procedures for the legal aid to participate as the defender forthe legitimate rights and interests, especially the defender for the legitimate rights and interests ofthe denounced person, the accused person, person subject to prosecution. While the Criminal Procedure
Code 2015 clearly stipulates the time when the defence counsel participate in the defence, theregulations on the time and procedures for becoming a defender for the legitimate rights and interests
are not detailed, especially in the case of a defender for the legitimate rights and interests of thedenounced person or the person subject to prosecution.
C. Strengthen Training and Education in Order to Develop Legal Aid Resources; Improve the Qualityof Legal aid Providers
Legal assistants who perform procedures in criminal cases not only help legal aid beneficiaries in termsof legal matters, but also help and encourage them to overcome psychological crises. Therefore, in order toenhance the role of legal aid in participating in criminal proceedings and to protect the rights and bestinterests of legal aid beneficiaries, it is necessary to do the following:- 	 Organizing training courses, experience sharing seminars, workshops and other forms to improve thecapacity of legal aid providers (including legal aid officers, legal aid collaborators, legal consultants andlawyers participating in legal aid), improve the researching skills of case files, improve questioning
skills to clarify the contents of the case, enhance the qualifications of the legal aid providers involvedin the case; equip those involved with experience using devices to store the information provided;
improve skills to collect documents and evidence related to the case; conduct in-depth study of unclear
or contradictory points of evidence, mitigating circumstances of criminal liability, motives, purposes,
causes and conditions of crime, identity of legal aid beneficiaries; and further prepare to attend thetrial thoroughly when participating in criminal proceedings. Legal assistants need to be familiar withthe procedures under the Criminal Procedure Code 2015 and fully participate in investigative activities
such as experimental investigation, scene examination, exhumation of corpses, distraint of property,
confrontation, identification etc. (The Ministry of Justice and Departments of Justice annually organize
many training courses for lawyers, legal aid providers and legal consultants in counselling skills andlegal support for offenders and victims. The lecturers are lawyers, legal experts with experience inthis field).
- 	 Coordinating with the Supreme People’s Court, the Supreme People's Procuracy and the Ministry of
Public Security to select appropriate topics to train and draw experience on litigation trials in thespirit of judicial reform for legal aid providers and proceeding-conducting persons. Especially, training
them with specific skills and experiences to work effectively with subjects with specific psychologicalcharacteristics such as: the accused who are aged between 16 years and under 18 years; the accused
who are members of households living just above the poverty line; victims in criminal cases who are
aged between 16 years and under 18 years; victims of domestic violence cases or matters; victims ofhuman trafficking under the Law on Human Trafficking Prevention and Combat etc.; gendermainstreaming skills in legal aid implementation.
D. Attracting Social Resources- 	 Continue to study processes and procedures to create favourable conditions for law-practicing
organizations, reputable and experienced legal consultancy centres to participate in legal aid; amending
regulations on signing legal aid performance contracts in the direction of simplifying procedures andorder for selecting and signing legal aid performance contracts. At the same time, the study has
specific regulations to honour agencies, organizations and individuals participating and contributing tolegal aid activities.
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RESOURCE MATERIAL SERIES No. 116- 	 Coordinating with socio-political, socio-political-professional organizations, socio-professionalorganizations (such as the Vietnam Lawyers Association, the Vietnam Bar Federation, Vietnam
Association for Protection of Child Rights, Vietnam Women's Union etc.) to have solutions to mobilize
and motivate members and members of the organization to contribute to the society throughparticipation in legal aid.
- 	 There should be coordination in the provision of legal aid according to the Law on Lawyers in orderto take advantage of legal aid resources and save the state budget.
E. International Cooperation
Strengthening and expanding cooperation relationships with countries and international organizations on
legal aid in general and legal aid in criminal justice in particular in various forms (technical assistance,
capacity-building, support resources etc.). In recent years, the Ministry of Justice has also received support
from a number of projects such as from the UNDP, UN Women, UNICEF, USAID etc.

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