When a person is suspected of a crime in Vietnam, one of the first questions asked is: from what point may a lawyer participate in the defence? Vietnamese criminal procedure law answers clearly — the right to defence counsel does not wait until trial; it begins at the investigation stage. This article systematises the current rules on the timing, eligible persons and powers of defence counsel, under Consolidated Document 172/2026/VBHN-LQ-VPQH consolidating the Criminal Procedure Code (issued 1 October 2026).
1. From when may defence counsel participate? (Article 74, Criminal Procedure Code)
This is the core rule. Under Article 74 of the Criminal Procedure Code, defence counsel participates in the proceedings from the initiation of criminal proceedings against the accused. Where a person is arrested or held in custody, defence counsel participates from the moment the arrested person is present at the headquarters of the investigation agency (or an agency assigned to conduct certain investigation activities), or from the issuance of the custody decision.
Thus, from the very first hours of the investigation, the accused already has the right to have a lawyer or other defence counsel by their side — there is no need to wait until the case goes to trial.
Mandatory exception: crimes against national security
For crimes against national security where the appointment of defence counsel must be kept confidential to serve the investigation, the competent Chief Procurator decides that defence counsel may participate from the conclusion of the investigation. This is the only exception the law allows for deferring counsel’s participation, and the decision-making authority belongs to the competent Chief Procurator.
2. Who may act as defence counsel? (Article 72)
Article 72 provides that defence counsel is a person engaged by the accused or appointed by the competent procedural authority, including:
- Lawyers;
- Representatives of the accused;
- People’s advocates;
- Legal aid officers where the accused is eligible for legal aid.
3. Rights of defence counsel (Article 73)
Defence counsel enjoys important rights, including:
- Meeting and questioning the accused;
- Being present when the investigation agency takes statements from the arrested, detained or accused person;
- Reading, noting and copying documents in the case file relating to the defence after the conclusion of the investigation;
- Presenting evidence, documents and objects, and making requests;
- Complaining about procedural decisions and acts of procedural agencies and competent persons.
4. Engaging and appointing defence counsel (Articles 75 and 76)
Choosing defence counsel (Article 75): The accused, their representative or their relatives may choose defence counsel. The agency managing an arrested or custodied person must forward the request for defence counsel within 12 hours; for a person held in pre-trial detention, the time limit is 24 hours.
Mandatory appointment of defence counsel (Article 76): In the following cases, if the accused, their representative or relatives do not engage defence counsel, the competent procedural authority must appoint one:
- The accused is charged with an offence whose maximum penalty frame is 20 years’ imprisonment, life imprisonment or the death penalty;
- The accused is under 18 years old;
- The accused has physical or mental disabilities preventing self-defence.
5. Constitutional foundation of the right to defence
The right to defence is enshrined at constitutional level: Article 31.4 of the 2013 Constitution provides that persons who are arrested, held in custody, detained, prosecuted, investigated, indicted or tried have the right to defend themselves or to engage lawyers or other persons for defence. Article 16 of the Criminal Procedure Code gives effect to this principle: competent procedural agencies must inform, explain and guarantee the accused’s exercise of the right to defence.
6. Foreigners committing crimes in Vietnam: notable points
For foreigners, in addition to the general rules above, three points deserve attention:
- Applicable law (Article 3, Criminal Procedure Code): Proceedings against foreigners committing crimes in the territory of Vietnam are conducted in accordance with international treaties to which Vietnam is a party or on the principle of reciprocity.
- Right to interpretation (Article 29, Criminal Procedure Code): Vietnamese is the language of criminal proceedings; participants in the proceedings have the right to use the spoken and written language of their own ethnicity, in which case interpretation must be provided. This is a substantive guarantee so that foreigners who do not speak Vietnamese can still exercise the right to defence.
- Right to notify the consular post (Article 36, Vienna Convention on Consular Relations 1963): Vietnam is a party to the Convention; a foreigner who is arrested, held in custody or detained has the right to request notification to their consulate; consular officers have the right to visit, communicate and arrange legal representation.
Note: Vietnamese law does not provide a separate regime of mandatory counsel appointment for foreigners — the mandatory appointment cases in Article 76 apply generally, regardless of nationality. The practical barriers for foreigners are usually language and access to lawyers, not different legal rules.
Frequently asked questions
May a lawyer meet the accused during the investigation stage?
Yes. Defence counsel may participate from the initiation of proceedings against the accused, or from when the arrested person is present at the investigation agency’s headquarters / a custody decision is issued, and has the right to meet and question the accused.
When may defence counsel access the case file?
After the conclusion of the investigation, defence counsel may read, note and copy documents in the case file relating to the defence.
In which cases is appointment of defence counsel mandatory?
Offences with a maximum penalty frame of 20 years’ imprisonment, life imprisonment or death; accused persons under 18; persons with physical/mental disabilities unable to defend themselves — if they do not engage counsel, the procedural authority must appoint one.
Contact FLAT Law Firm for advice on the right to defence in criminal cases.
Note: This article is for general reference only and does not constitute legal advice. Legal provisions may change; specific cases require a lawyer’s opinion.
For reference only, not legal advice. Content quality-checked by the AI Legal Council; not yet reviewed by a human lawyer.