Resolution No. 02/2018/NQ-HDTP dated May 15, 2018 of the Judicial Council of the Supereme People's Court on guiding the application of Articles 65 of the Penal Code regarding suspended sentence

RESOLUTION

Guiding the application of Articles 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 has been 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. Suspended sentence

Suspended sentence is a measure of conditional exoneration from serving imprisonment penalty applied by the court to convicts sentenced to imprisonment of up to 3 years based on their personal records and extenuating circumstances, when it is deemed unnecessary to force them to serve imprisonment penalty.

Article 2. Conditions for convicts sentenced to imprisonment to be entitled to suspended sentence

A convict sentenced to imprisonment may be considered for suspended sentence when fully satisfying the following conditions:

1. He/she is sentenced to imprisonment of up to 3 years.

2. He/she has good personal records.

A person shall be regarded as having good personal records if, not taking into account the crime of which he/she is convicted, he/she has always observed state policies and laws and fulfilled all citizen obligations at his/her place of residence and workplace.

For a convict who is entitled to be regarded as having no previous conviction or has had his/her conviction expunged, or a person who has been administratively sanctioned or disciplined for whom the duration, upon the expiration of which he/she may be regarded as having never been administratively sanctioned or disciplined, has expired more than 6 months by the time he/she commits a new crime, if deeming that the new crime is less serious or that he/she played an insignificant role as an accomplice in the criminal case and fully satisfies other conditions, the court may also entitle him/her to suspended sentence.

3. He/she has two or more circumstances extenuating his/her penal liability, including at least one circumstance specified in Clause 1, Article 51 of the Penal Code, and has no circumstances aggravating his/her penal liability specified in Clause 1, Article 52 of the Penal Code.

In case he/she has circumstances aggravating his/her penal liability, his/her circumstances extenuating his/her penal liability must be at least two more than the aggravating circumstances, including at least one circumstance specified in Clause 1, Article 51 of the Penal Code.

4. He/she has a clearly addressed place of residence or stable workplace so that he/she can be supervised and educated by a competent agency or organization.

A clearly addressed place of residence means a place of temporary residence or permanent residence with an address specifically indicated in accordance with the Law on Residence where the convict entitled to suspended sentence intends to reside frequently after being sentenced.

A stable workplace means a place where the convict entitled to suspended sentence works under a labor contract with a term of at least one year or under a decision of a competent agency or organization.

5. He/she is able to reform himself/herself so that it is unnecessary to force him/her to serve imprisonment penalty and the suspension of his/her sentence will cause no danger to the society and no bad impact on social security, order and safety.

Article 3. Persons not entitled to suspended sentence

1. Offenders who are conspirators, ringleaders, commanders, die-hard opposers, hooligans or dangerous recidivists, have employed insidious tricks or committed crimes in a professional manner, or abuse their positions or powers to act for self-seeking purposes or intentionally cause particularly serious consequences.

2. Persons who have committed criminal acts and later absconded and are wanted under warrants by proceeding-conducting bodies.

3. Persons who are entitled to suspended sentence but commit a new crime during the probation period; persons who are currently enjoying suspended sentence but are brought to court for another crime they committed before being entitled to suspended sentence.

4. Persons who are tried for more than one crime at a hearing, excluding those aged under 18 years.

5. Persons who have repeatedly committed a crime, excluding those aged under 18 years.

6. Offenders in case of recidivism or dangerous recidivism.

Article 4. Ruling on a probation period

When entitling a convict to suspended sentence, the court shall rule on the probation period which must be twice the applicable imprisonment term and between 1 year and 5 years.

Article 5. Starting point of a probation period

The starting point of a probation period shall be determined as follows:

1. In case the first-instance court entitles a convict to suspended sentence and its judgment is neither appealed nor protested against according to the appellate procedures, the probation period shall be counted from the date the first-instance judgment is pronounced.

2. In case both first-instance court and appellate court entitle a convict to suspended sentence, the probation period shall be counted from the date the first-instance judgment is pronounced.

3. In case the appellate court entitles a convict to suspended sentence but the first-instance court refuses to entitle him/her to suspended sentence, the probation period shall be counted from the date the appellate judgment is pronounced.

4. In case the first-instance court entitles a convict to suspended sentence but the appellate court refuses to entitle him/her to suspended sentence, then the cassation trial council quashes the appellate judgment for re-trial according to the appellate procedures and the appellate court, through re-trial, entitles him/her to suspended sentence, the probation period shall be counted from the date the first-instance judgment is pronounced.

5. In case both first-instance court and appellate court entitle a convict to suspended sentence but the cassation trial council quashes the first-instance and appellate judgments for re-investigation or re-trial and, through re-trial according to the first-instance or appellate procedures, the first-instance court and appellate court uphold the ruling entitling the convict to suspended sentence, the probation period shall be counted from the date the initial first-instance or appellate judgment is pronounced.

6. In case the first-instance court refuses to entitle a convict to suspended sentence and its judgment is neither appealed nor protested against according to the appellate procedures, but the cassation trial council modifies the first-instance judgment to entitle the convict to suspended sentence, the probation period shall be counted from the date the cassation ruling becomes legally effective.

7. In case both first-instance court and appellate court refuse to entitle a convict to suspended sentence but the cassation trial council modifies the appellate judgment to entitle the convict to suspended sentence, the probation period shall be counted from the date the cassation ruling becomes legally effective.

8. In case the first-instance court entitles a convict to suspended sentence and the appellate court refuses to entitle him/her to suspended sentence, but the cassation trial council quashes the appellate judgment and upholds the first-instance judgment or modifies the appellate judgment to entitle the convict to suspended sentence, the probation period shall be counted from the date the first-instance judgment is pronounced.

Article 6. Contents of judgments entitling convicts sentenced to imprisonment to suspended sentence

In addition to the contents specified in Article 260 of the Criminal Procedure Code, a judgment entitling a convict sentenced to imprisonment to suspended sentence must have the following contents:

1. Regarding the handover of the convict to the commune-level People’s Committee of the locality where he/she resides or to the agency or organization where he/she works for supervision and education during his/her probation period:

a/ When entitling the convict to suspended sentence, the court shall clearly state in the ruling section of the judgment the handover of the convict entitled to suspended sentence to the commune-level People’s Committee of the locality where he/she resides or to the agency or organization where he/she works for supervision and education during his/her probation period;

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