'If a lawyer denounces his client, the possibility of a miscarriage of justice is high'

"In cases where lawyers are provided with information by their clients but do not have the conditions to investigate and verify, and then denounce their clients, the possibility of a wrongful conviction is very high," National Assembly delegate Truong Trong Nghia shared.

Mr. Truong Trong Nghia: "If lawyers have to denounce their clients, the possibility of wrongful conviction is high." Photo: Vo Van Thanh

- The draft law amending and supplementing the 2015 Penal Code stipulates that lawyers must report crimes, if they are particularly serious crimes or crimes against national security. During the discussion in the hall, a delegate emphasized this content and then received many opposing opinions from society. What is your opinion?

- There is a connection between two laws here. The first law is the obligation of citizens to report crimes. This law has existed before and other countries also have it, so the obligation of citizens to report crimes is completely reasonable.

Second, in many countries, in some cases, the obligation of citizens to report crimes is limited, meaning that not all must report, but there are cases that are excluded from this obligation, most clearly shown in the relationship between lawyers and clients. In other countries, the obligation of lawyers to keep information confidential to clients is not only in criminal proceedings but also when consulting, because disclosure can cause great losses. In addition, financial, health, psychological advice... are also special relationships and are confidential.

According to the Constitution and international human rights conventions, a person under defense has the right to be presumed innocent; until a court has rendered a final judgment, he or she must be treated as innocent. The arrest or detention of a person does not mean that he or she is presumed guilty, but this is only to serve the investigation process when necessary.

Thus, the citizen's obligation to denounce is limited by the special relationship mentioned above. In these special relationships, the lawyer-client relationship emerges, especially when the lawyer defends the accused. The lawyer has the obligation not to disclose information or denounce the accused because they have the right to presume innocence.

The Constitution gives the accused the right not to be forced to testify against themselves, and not to be forced to plead guilty. From Roman law to modern law, a person is not obliged to prove his innocence, but the prosecution must prove it if they suspect them of guilt. This is to prevent wrongful convictions, to protect justice, to protect innocent citizens, who are the majority in society.

In reality, there are cases where the accused confesses because they were forced to confess, tortured, or prompted to confess. In such cases, they can present to a lawyer for advice on protecting their rights. Of course, the law and professional regulations of lawyers stipulate that lawyers are not allowed to incite false testimony, and are not allowed to intentionally help the accused conceal crimes.

- According to the above analysis, the regulation on confidentiality of information between lawyers and the person being defended comes from the constitutional human rights of the accused, and lawyers are not allowed to violate that right?

- In many countries, the right to confidentiality is quite broad, meaning that many professions and fields are protected. Provisions such as the draft Law amending and supplementing the 2015 Penal Code (Article 19.3) are relatively narrow. For example, if there are signs of a crime being committed or about to be committed, lawyers are not exempted, or lawyers must report it if they “know” about the crime, but the word “know” is very vague and very lenient.

The provision exempting lawyers from the obligation to report the person they defend has great significance and is very fundamental to the judicial system. First of all, how can lawyers investigate and collect evidence to convict their clients without knowing that their clients have committed crimes? There are cases where the prosecutor prosecutes, the court tries and re-trials for many years but still results in wrongful convictions, such as the cases of Mr. Huynh Van Nen and Han Duc Long. In cases where lawyers are provided with information by their clients but do not have the conditions to investigate and verify, but instead report their clients, the possibility of wrongful conviction is very high.

Furthermore, if a lawyer defends a person and causes a wrongful conviction, it is unethical and against the law. The defendant has the right to sue the lawyer for breach of the consulting service contract, or even for slander. This also causes the client to lose confidence in the lawyer, while the design of international law is to create a relationship of trust between the person being defended and the lawyer. Especially foreigners who come to live in Vietnam, if there is a litigation problem, they cannot use a foreign lawyer but must hire a Vietnamese lawyer. When Vietnamese lawyers have a very broad reporting obligation, they will be very worried, because the risk is too great for them.

The 3rd session of the 14th National Assembly is considering amending and supplementing the 2015 Penal Code.

- So, in your opinion, what regulations are needed to ensure that suspects and defendants enjoy constitutional rights?

- Information confidentiality in the relationship between lawyers and clients is first and foremost the right of the person being defended - the accused - not the lawyer. According to the principle I mentioned above, the person being defended presents all the details of the case to the lawyer to exercise their right to defense, so it must be kept confidential. But there are cases where the lawyer is caught between the responsibility and obligation to the defender on one side and the responsibility to the country and society on the other. The law must create conditions for the lawyer to make a reasonable choice.

I think the draft law stipulates that lawyers must report crimes if they are particularly serious crimes and crimes against national security, which is too broad. In my opinion, three more elements are needed. First: lawyers must only report when they clearly know that the crime is related to national security and is particularly serious. Knowing clearly does not only rely on confessions, because there are cases where the accused or defendant mistakenly admits their crime and makes such confessions. For example, the victim intentionally jumps in front of a car to commit suicide, but the accused or defendant thinks he or she hit and killed the victim.

Second, the above "clear knowledge" must be accompanied by evidence. The accused can admit guilt, but must be accompanied by evidence because the prosecutor must have evidence when prosecuting and the court must have evidence when trying, let alone a lawyer denouncing his client?

Third, when the defendant's behavior continues to endanger many people, such as when a defendant claims to be planting bombs or mines that are about to explode, or when their criminal organization continues to commit dangerous acts.

I agree with the opinion of Mr. Do Ngoc Thinh, Chairman of the Bar Federation, who suggested that even particularly serious crimes that lawyers must report should be limited and reduced in number.

Thus, it can be seen that the right to confidentiality is from the accused, the defendant that the lawyer must keep confidential, but this right is not absolute but has limitations. That is when it conflicts, affects, harms the interests of the country, of society, of other innocent people. This limitation is compatible with the obligation to denounce crimes. The regulation with the 3 elements as I mentioned is to have harmony in the rights and obligations of lawyers in the relationship with the person they defend, thereby achieving the highest reasonableness of the law.

- There is a suggestion that lawyers should not be required to denounce their clients. What do you think?

- For example, there are fanatical, extremist terrorists whose actions are and will continue to endanger society, so the obligation to denounce is necessary, but lawyers must know clearly and must have evidence to prevent wrongful convictions.

The international community has discussed this for hundreds of years and has come to a general consensus that the lawyer-client relationship is confidential, but the extent to which it is confidential depends on the country. In many countries, confidentiality is almost absolute and very broad, not only in criminal relations but also in other areas. The international community has reached a consensus, and now we are putting it into law, although it is slower, but it is necessary because the 2013 Constitution has recognized a number of human rights in accordance with international conventions, while under the previous Constitution, human rights were limited to civil rights.

From the progress of the 2013 Constitution and the steps of judicial reform, it has led to the provisions of the draft Law amending and supplementing a number of articles of the 2015 Penal Code, limiting the obligation of lawyers to denounce crimes. That is, lawyers do not have the obligation to denounce crimes like ordinary citizens, but only have the obligation in cases related to particularly serious crimes, crimes against national security.

In our country, the obligation to denounce crimes has existed for a long time, it is the obligation of citizens and is not limited to lawyers. The 2015 Penal Code has limitations, but the Bar Federation has the opinion that such limitations are still too broad, and need to be more clear so that not only lawyers but also citizens who use lawyers to defend themselves know clearly when they can be denounced, so that they can exercise their right not to be forced to make unfavorable statements and not to be forced to plead guilty.

- Lawyers cannot "expose" their clients. However, in the course of practice, it is inevitable that lawyers will have subjective discoveries about their clients' crimes. At that time, there was a suggestion that there should be an open regulation for lawyers to resign from their defense role and keep all secrets for life. What do you think about this suggestion?

- If we keep the provisions related to crime reporting as in the draft Law amending and supplementing the 2015 Penal Code and with such an open direction, to protect their own safety, I am afraid that more and more people will refuse to defend, because currently lawyers are very reluctant to defend criminal cases. Meanwhile, the law stipulates that there are cases that cannot be tried without a lawyer.

Once the lawyer-client relationship is negatively affected, the client loses trust in the lawyer, and the lawyer is afraid of not reporting the crime, then the judiciary will have systemic errors and cannot fulfill its function of protecting justice, human rights, and civil rights.

- Recently, public opinion has been interested in the discussion of National Assembly delegates on the above content, and there have been many different opinions. What do you think?

- The organization of this discussion of the Penal Code and the direction of the National Assembly Chairman and the National Assembly Standing Committee are open and democratic, creating conditions for debate when there are different opinions.

The National Assembly Chairman also said that he would arrange for the Bar Federation and the rectification group to meet to discuss how to “understand each other and reach a reasonable conclusion”. That is a way of dealing with the principles of parliamentary democracy, very proper and very welcome. The remaining thing is that we really hope that the majority of National Assembly delegates will support the proposals of the Bar Federation and the legal community, for a “democratic, fair, civilized” judiciary, integrated with the world, avoiding avoidable systemic errors, because the consequences can be very harmful in many ways, both in the short term and in the long term.

During the law-making process, it is normal for National Assembly deputies to have different opinions. They can debate and debate equally, so I have no prejudice against any opinions that are different from mine.

According to VNE