Resolution No. 01/2018/NQ-HDTP dated April 24, 2018 of the Judicial Council of the Supreme People’s Court guiding the application of Articles 66 and 106 of the Penal Code on conditional early release of prisoners

RESOLUTION

Guiding the application of Articles 66 and 106 of the Penal Code regarding conditional early release of prisoners^[1]

THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT

Pursuant to the November 24, 2014 Law on Organization of People’s Courts;

In order to properly and uniformly apply the provisions of Articles 66 and 106 of Penal Code No. 100/2015/QH13, which is amended and supplemented under Law No. 12/2017/QH14;

After reaching agreement with the Procurator General of the Supreme People’s Procuracy and the Minister of Justice,

RESOLVES:

Article 1.Conditional early release of prisoners

Conditional early release of prisoners is a measure applied by the court to persons who are serving imprisonment sentences and fully satisfy the conditions prescribed by the Penal Code when finding it unnecessary to compel them to continue serving such imprisonment sentences in detention facilities.

Article 2.Conditions for conditional early release of persons who are serving imprisonment sentences for serious crimes, very serious crimes or particularly serious crimes

A person who is serving an imprisonment sentence for a serious crime, very serious crime or particularly serious crime, if not falling into one of the cases specified in Clause 2, Article 66 of the Penal Code, may be early released if fully satisfying the following conditions:

1. Having had his/her imprisonment sentence commuted.

2. Having committed the crime for the first time.

He/she may be regarded as having committed the crime for the first time and considered for sentence commutation if he/she:

a/ Has never committed a crime;

b/ Has previously committed a criminal act but is exempted from penal liability;

c/ Has previously committed a criminal act and is subjected to the judicial measure of education at a reformatory;

d/ Has previously been convicted but is eligible for being regarded as having no previous conviction.

3. Having shown improvements and a good sense of reform through his/her good observance of internal rules of the prison, detention camp or custody house; having actively learned and worked for reforming himself/herself and having a sufficient number of periods during which his/her imprisonment sentence serving is evaluated at least as relatively good in accordance with the law on execution of criminal judgments, specifically as follows:

a/ If he/she is serving a life imprisonment sentence commuted to termed imprisonment, he/she must have at least 20 consecutive quarters during which his/her imprisonment sentence serving is evaluated at least as relatively good, by the time of consideration of or request for conditional early release;

b/ If he/she is serving a termed imprisonment sentence of between over 20 years and 30 years, he/she must have at least 16 consecutive quarters during which his/her imprisonment sentence serving is evaluated at least as relatively good, by the time of consideration of or request for conditional early release;

c/ If he/she is serving a termed imprisonment sentence of between over 15 years and 20 years, he/she must have at least 12 consecutive quarters during which his/her imprisonment sentence serving is evaluated at least as relatively good, by the time of consideration of or request for conditional early release;

d/ If he/she is serving a termed imprisonment sentence of between over 10 years and 15 years, he/she must have at least 8 consecutive quarters during which his/her imprisonment sentence serving is evaluated at least as relatively good, by the time of consideration of or request for conditional early release;

dd/ If he/she is serving a termed imprisonment sentence of between over 5 years and 10 years, he/she must have at least 6 consecutive quarters during which his/her imprisonment sentence serving is evaluated at least as relatively good, by the time of consideration of or request for conditional early release;

e/ If he/she is serving a termed imprisonment sentence of between over 3 years and 5 years, he/she must have at least 4 consecutive quarters during which his/her imprisonment sentence serving is evaluated at least as relatively good, by the time of consideration of or request for conditional early release;

g/ If he/she is serving a termed imprisonment sentence of up to 3 years, he/she must have at least 2 consecutive quarters during which his/her imprisonment sentence serving is evaluated at least as relatively good, by the time of consideration of or request for conditional early release.

For example: Nguyen Van A was sentenced to imprisonment of 14 years. By March 31, 2018, he has served the sentence for 7 years. To be considered for conditional early release (in the first quarter of 2018), he must have his imprisonment sentence serving in 8 consecutive quarters (the first quarter of 2018; the four quarters of 2017 and the second, third and fourth quarters of 2016) evaluated at least as relatively good.

4. Having a clear place of residence.

The place of residence of a person entitled to conditional early release means his/her place of temporary or permanent residence as defined in the Law on Residence to which he/she will return to frequently reside or live after being released.

A clear place of residence means a place of residence with a clear address.

5. Having completely served the additional penalty being fine and/or legal cost and fulfilled the obligation to pay compensation for damage.

a/ Having completely served the additional penalty being fine and legal cost means having fully paid the fine and legal cost shown in receipts and documents or having obtained the court’s decision on exemption from serving the fine and paying the legal cost;

b/ Having fulfilled the obligation to pay compensation for damage means one of the following: Having fulfilled the obligation to pay compensation for damage under the court judgment or ruling; having obtained a decision of the head of the competent civil judgment enforcement body on suspension of judgment enforcement; or having obtained a written consent of the victim or his/her lawful representative to freeing him/her from the obligation to pay compensation for damage under the court judgment or ruling as certified by a competent body.

6. Having served at least half of the termed imprisonment sentence; or at least 15 years, if he/she was sentenced to life imprisonment commuted to termed imprisonment.

a/ The period of having served the imprisonment sentence is a period during which he/she is held in custody, temporarily detained or serving the imprisonment sentence in a prison or detention camp or compelled to take medical treatment during the investigation, prosecution, trial or judgment execution, excluding the period when he/she is bailed out or entitled to postponement or suspension of imprisonment sentence serving and the period of commutation of the sentenced imprisonment term. The period of commutation of the sentenced imprisonment term (if any) shall be subtracted from the remaining imprisonment term he/she still has to serve.

For example: Nguyen Van B was sentenced to imprisonment of 14 years. By March 31, 2018, he has served the sentence for 7 years. During his/her sentence serving, he is entitled to a one-year commutation of the sentenced imprisonment term, then the remaining imprisonment term he still has to serve is 6 years.

b/ In case he/she is a person with meritorious services to the revolution, a relative of a person with meritorious services to the revolution, a person aged full 70 years or older, a person with severe or particularly severe disabilities, or a woman nursing a child under 36 months, he/she must have served at least one-third of his/her termed imprisonment sentence or at least 12 years if he/she was sentenced to life imprisonment commuted to termed imprisonment.

A person with meritorious services to the revolution or a relative of a person with meritorious services to the revolution shall be identified in accordance with the law on preferential treatment of persons with meritorious services to the revolution.

A person with severe or particularly severe disabilities shall be identified in accordance with the law on persons with disabilities.

The identification of a person with severe or particularly severe disabilities shall be based on the conclusion of a provincial-level medical assessment council or of a disability rating council.

7. Conditional early release shall be considered in a prudent and strict manner to avoid causing adverse impacts on security and social order and safety, especially for convicts committing narcotics- or corruption-related crimes or organized crimes or being crime conspirators, ringleaders, commanders, die-hard opposers, hooligans or dangerous recidivists.

Article 3.Conditions for conditional early release of persons who are serving imprisonment sentences for less serious crimes

A person who is serving an imprisonment sentence for a less serious crime, if not falling into one of the cases specified in Clause 2, Article 66 of the Penal Code, may be early released if fully satisfying the conditions prescribed in Clauses 2, 3, 4, 5 and 6, Article 2
of this Resolution.

Article 4.Conditions for conditional early release of under-18 persons who are serving imprisonment sentences

An under-18 person who is serving an imprisonment sentence, if not falling into one of the cases specified in Clause 2, Article 66 of the Penal Code, may early released if fully satisfying the following conditions:

1. The conditions prescribed in Clauses 2, 3 and 4, Article 2 of this Resolution.

2. Having served one-third of his/her imprisonment term.

Article 5.Cancellation of decisions on conditional early release

1. During the probation period, at the proposal of a competent criminal judgment execution body, the court that has issued a decision on conditional early release of a person may cancel such decision and compel him/her to serve the unserved imprisonment term if he/she has intentionally breached his/her obligation twice or more or has been administratively sanctioned twice or more.

2. An early released person shall be regarded as having intentionally breached his/her obligation if:

a/ He/she fails to present himself/herself to the commune-level People’s Committee or public security office of the locality where he/she returns to reside and to register his/her temporary or permanent residence in accordance with the law on residence within 5 days from the date of conditional early release;

b/ He/she fails to strictly fulfill his/her commitment to observing the law and fulfilling his/her citizen obligations, internal rules and regulations of his/her place of residence or workplace; fails to work and learn; or fails to fully serve the additional penalty(ies);

c/ He/she fails to submit to the management, supervision and education by the commune-level People’s Committee, army unit assigned to manage him/her, criminal judgment execution body of the district-level public security office or military zone-level criminal judgment execution body of the locality where he/she resides or works and by the person assigned by a competent agency to manage and educate him/her;

d/ He/she fails to ask for permission or obtains no consent of a competent agency when leaving his/her place of residence. He/she has left his/her place of residence for 3 days without consent of the person assigned to directly manage and educate him/her; or has left his/her place of residence for over 3 days without consent of the commune-level People’s Committee;

dd/ He/she fails to present himself/herself at the request of the commune-level People’s Committee, army unit assigned to manage him/her, criminal judgment execution body of the district-level public security office or military zone-level criminal judgment execution body of the locality where he/she returns to reside or work;

e/ He/she fails to report on a monthly basis to the person assigned to manage and educate him/her on his/her learning, work and training and progress;

g/ He/she fails to report in writing on a quarterly basis on his/her observance of the regulations on persons entitled to conditional early release to the commune-level People’s Committee, army unit assigned to manage him/her, criminal judgment execution body of the district-level public security office or military zone-level criminal judgment execution body of the locality where he/she returns to reside or work.

Article 6.Conditions for shortening the probation period

An early released person may have his/her probation period shortened when fully satisfying the following conditions:

1. Having served at least half of the probation period.

2. Showing improvements during the probation period through having strictly observed the law and fulfilled obligations; having actively learned and worked, corrected his/her errors and recorded merits in labor or production or safeguarding the national security, etc., and been commended and rewarded by a provincial- or higher-level agency.

Article 7.Shortening of the probation period

Every year, an early released person may be considered for having his/her probation period shortened once by 3 months to 2 years. A decision on shortening of the probation period must clearly state the remaining probation period for the early released person.

In case the remaining probation period of an early released person is under 3 months, the court may decide to expunge it.

Article 8.Effect

1. This Resolution was adopted by the Judicial Council of the Supreme People’s Court on April 24, 2018, and takes effect on June 9, 2018.

2. As from the date of adoption of this Resolution, people’s courts of provinces and centrally run cities, and military courts of military zones and equivalent levels shall coordinate with competent agencies in preparing necessary conditions for the consideration of conditional early release of prisoners in accordance with law.

3. Any problems arising in the course of implementation of this Resolution should be reported to the Supreme People’s Court (the Department of Legal Affairs and Science Management) for timely guidance, amendment and supplementation.-

On behalf of the Judicial Council of
the Supreme People’s Court
Chief Justice
NGUYEN HOA BINH