Resolution 01/2022/NQ-HDTP amending Resolution 02/2018/NQ-HDTP, guiding the application of Articles 65 of the Penal Code regarding suspended sentence

RESOLUTION

Amending and supplementing a number of articles of Resolution No. 02/2018/NQ-HDTP of May 15, 2018, of the Judicial Council of the Supreme People’s Court, guiding the application of Article 65 of the Penal Code regarding suspended sentence^[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 Article 65 of Penal Code No. 100/2015/QH13, which had a number of articles amended and supplemented under Law No. 12/2017/QH14;

After obtaining opinions of the Procurator General of the Supreme People’s Procuracy and the Minister of Justice,

RESOLVES:

Article 1. To amend and supplement a number of articles of Resolution No. 02/2018/ND-HDTP of May 15, 2018, of the Judicial Council of the Supreme People’s Court, guiding the application of Article 65 of the Penal Code regarding suspended sentence

1. To amend and supplement Article 2 as follows:

a/ To amend and supplement Clause 2, Article 2 as follows:

“2. A convict sentenced to imprisonment will be regarded as having good personal records if, in addition to the crime of which he/she is convicted, has always observed state policies and laws and fulfilled all citizens’ obligations at his/her place of residence and workplace.

a/ For a convict who is regarded as having no previous conviction or has had his/her previous convictions expunged, or a person who has been administratively sanctioned or disciplined but, by the date of commission of the crime of which he/she is convicted, the duration, upon the expiration of which he/she may be regarded as having never been administratively sanctioned or disciplined, has expired in accordance with law, if deeming that the new crime is less serious in terms of nature and severity or that he/she played an insignificant role as an accomplice in the criminal case and fully satisfies other law-specified conditions, the court may also entitle him/her to suspended sentence;

b/ For a convict for whom, by the time of crime determination, the circumstance of “having been disciplined” or “having been administratively sanctioned” or “having been convicted” has been used, and who fully satisfies other law-specified conditions, the court may also entitle him/her to suspended sentence;

c/ For a convict for whom the criminal case has been split up (into several cases) for settlement in different stages and who fully satisfies other law-specified conditions, the court may also entitle him/her to suspended sentence.”.

b/ To add Clause 6 to Article 2 as follows:

“6. Upon considering and deciding to entitle a defendant to suspended sentence, the court shall cautiously and strictly examine conditions for ensuring that the entitlement to suspended sentence is compliant with law, especially for cases guided in Clauses 2, 4 and 5, Article 3 of this Resolution.”.

2. To amend and supplement Article 3 as follows:

a/ To amend and supplement Clause 2, Article 3 as follows:

“2. Persons who have committed criminal acts and later absconded and are wanted or requested to be wanted under warrants by proceeding-conducting bodies, unless they have turned themselves in before decisions to bring the cases for trial are issued.”.

b/ To amend and supplement Clause 4, Article 3 as follows:

“4. Offenders who are tried for more than one crime at a hearing, except one of the following cases:

a/ They are aged under 18 years;

b/ They have been tried and convicted for 2 crimes which are both less serious or they have acted as helpers playing an insignificant role in accomplice cases.”.

c/ To amend and supplement Clause 5, Article 3 as follows:

“5. Persons who have committed a crime twice or more, except one of the following cases:

a/ They are aged under 18 years;

b/ All crimes they have committed are less serious ones;

c/ For all crimes they have committed, they have acted as helpers playing an insignificant role in accomplice cases;

d/ They confess all crimes they have committed.”.

3. To add Article 4a below Article 4 as follows:

“Article 4a. Determination of periods of serving imprisonment sentences for convicts entitled to suspended sentence and held in custody or temporary detention

Periods of being held in custody or temporary detention for convicts entitled to suspended sentence may not be cleared against periods of serving the imprisonment penalty for ruling on probation periods. If a convict commits a new crime during his/her probation period or breaches his/her obligation to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence, upon settling the case, the court shall clear the period he/she is held in custody or temporary detention against the period he/she serves the imprisonment penalty in the judgment entitling him/her to suspended sentence or a new judgment.”.

4. To add Clause 9 to Article 5 as follows:

“9. In case the first-instance court entitles a convict to suspended sentence but the appellate court quashes the first-instance judgment for re-investigation or re-trial and after the first-instance re-trial, the first-instance court still entitles the convict to suspended sentence, the probation period shall be counted from the date the first-instance judgment is pronounced for the second time.”.

5. To amend and supplement Article 10 as follows:

“Article 10. In case a convict entitled to suspended sentence is forced to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence due to his/her intentional breach of obligations

1. A convict entitled to suspended sentence may be forced by the court to serve the imprisonment penalty of the judgment that has entitled him/her to suspended sentence if he/she has intentionally breached his/her obligations specified in Article 87 of the Law on Execution of Criminal Judgments twice or more during the probation period.

2. Having breached obligations twice or more in case a convict entitled to suspended sentence leaves his/her place of residence without asking for permission shall be determined as follows:

During the probation period, the convict entitled to suspended sentence leaves his/her place of residence without asking for permission and a competent body has made a minutes of obligation breach under Articles 87, 91 and 92 of the Law on Execution of Criminal Judgments, given the first warning to him/her and summoned him/her for continued sentence serving but he/she still fails to show up according to the summons, then the competent body holds a review of the convict’s behaviors in absentia and makes a minutes thereof. In this case, the convict is regarded as having breached his/her obligations for the first time.

Pursuant to Article 93 of the Law on Execution of Criminal Judgments, the competent body continues summoning the convict entitled to suspended sentence but he/she still fails to show up and is given warning for the second time under a minutes. If the convict entitled to suspended sentence still fails to show up after being summoned again by the competent body, the latter shall make a minutes of his/her absence. In this case, the convict is regarded as having breached his/her obligations for the second time.”.

Article 2. To annul an article and a form promulgated together with Resolution No. 02/2018/NQ-HDTP of May 15, 2018, of the Judicial Council of the Supreme People’s Court, guiding the application of Article 65 of the Penal Code regarding suspended sentence

1. To annul Article 9.

2. To annul Form No. 01-HS promulgated together with Resolution No. 02/2018/NQ-HDTP of May 15, 2018, of the Judicial Council of the Supreme People’s Court, guiding the application of Article 65 of the Penal Code regarding suspended sentence.

Article 3. Effect  

1. This Resolution was adopted by the Judicial Council of the Supreme People’s Court on March 23, 2022, and takes effect on May 10, 2022.

2. This Resolution shall be applied to handle criminal acts committed before the effective date of this Resolution for which criminal cases are in the process of first-instance trial, appellate trial or trial according to the cassation or reopening procedures.

3. For offenders tried before the effective date of this Resolution under previous guiding documents and judgments against whom have become legally effective, this Resolution shall not be applied to make protests according to cassation or reopening procedures.-

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