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;

b/ When handing over the convict entitled to suspended sentence to the commune-level People’s Committee of the locality where he/she resides for supervision and education during his/her probation period, the court shall clearly state in the ruling section of the judgment the name of the commune-level People’s Committee; the name of the district, town or provincial city; the name of the province or centrally run city assigned to supervise and educate him/her, and at the same time clearly state that in case the convict entitled to suspended sentence changes his/her place of residence, the law on execution of criminal judgments shall be complied with;

c/ When handing over the convict entitled to suspended sentence to the agency or organization where he/she works for supervision and education during his/her probation period, the court shall clearly state in the ruling section of the judgment the name and full address of such agency or organization, and at the same time clearly state that in case the convict entitled to suspended sentence changes his/her workplace, the law on execution of criminal judgments shall be complied with.

In case the agency or organization assigned to supervise and educate the convict entitled to suspended sentence belongs to the people’s army, the name of the army unit assigned to supervise and educate him/her shall be clearly stated in the ruling section of the judgment.

2. Regarding the pronouncement of consequences resulting from obligation breach during the probation period

In the ruling section of the judgment entitling the convict to suspended sentence, the court shall clearly pronounce consequences resulting from the obligation breach during the probation period under Clause 5, Article 65 of the Penal Code, specifically as follows:

“During the probation period, if the convict entitled to suspended sentence intentionally breaches his/her obligations twice or more, the court may rule to force him/her to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence.”

Article 7.Ruling on penalties in case a convict entitled to suspended sentence commits a new crime during his/her probation period or committed another crime before being entitled to suspended sentence

1. In case a convict entitled to suspended sentence commits a new crime during his/her probation period, the court shall rule on penalties for the new crime and then aggregate them with the imprisonment penalty imposed by the previous judgment under Articles 55 and 56 of the Penal Code. If the convict has been held in custody or temporary detention, the custody or detention period shall be deducted from the imprisonment term.

2. In case a convict entitled to suspended sentence is detected to have previously committed another crime, the court shall rule on penalties for such crime but shall not incorporate such penalty ruling in the judgment entitling the convict to suspended sentence. In this case, the convict shall concurrently serve two judgments and the judgment execution shall be jointly carried out by agencies assigned to execute criminal judgments in accordance with the Law on Execution of Criminal Judgments.

Article 8.Conditions for and level of reduction of the probation period of convicts entitled to suspended sentence

1. A convict entitled to suspended sentence may be entitled to a shorter probation period as decided by a district-level people’s court or regional military court when fully satisfying the following conditions:

a/ Having served half of the probation period of the suspended sentence;

b/ Showing improvements during the probation period, including having strictly observed the law and fulfilled his/her obligations in accordance with the Law on Execution of Criminal Judgments, actively learned and worked, mended his/her errors or recorded achievements in productive labor or protection of national security as commended and rewarded by competent state agencies;

c/ The commune-level People’s Committee, agency or organization assigned to supervise and educate him/her makes a request for shortening his/her probation period.

2. Every year, a convict entitled to suspended sentence may have his/her probation period reduced once by one month to one year. He/she may have his/her probation period reduced multiple times but shall actually serve at least three-quarters of his/her probation period as pronounced by the court.

3. In case a competent agency has made a dossier of request for shortening the probation period for a convict entitled to suspended sentence but such request is declined by the court, if he/she can still fully satisfy the prescribed conditions, the commune-level People’s Committee or agency or organization assigned to supervise and educate him/her may make another request for shortening the probation period for such convict.

4. In case a convict entitled to suspended sentence achieves a feat or falls seriously ill and fully satisfies the conditions specified in Clause 1 of this Article, the court may rule on shortening the remaining probation period.

Achieving a feat means an act of a convict entitled to suspended sentence helping a competent state agency detect, pursue, arrest or investigate a criminal; saving another person in danger or salvage a property of the State, a collective or citizen which is valued more than VND 50 million from a natural disaster, a fire, an epidemic or an accident; inventing an innovation as certified by a competent state agency or recording an outstanding achievement in labor, study or combat as commended and certified by a competent state agency.

Falling seriously ill means the case in which the convict entitled to suspended sentence is concluded by a provincial-level hospital or a hospital at the military-zone level or higher level that he/she is infected by a fatal disease, such as final-stage cancer, hepatic cirrhosis, drug-resistant degree-4 tuberculosis, paralysis, degree-3 heart failure, degree-4 or higher-degree kidney failure, and full-blown AIDS vulnerable to opportunistic infection, and is unable to take care of himself/herself and has a high risk of dying from such disease.

Article 9.Competence, order, procedures and time limit for considering and deciding to  shorten the probation period

1. Within 3 working days after the receipt of a dossier of request for shortening the probation period for a convict entitled to suspended sentence submitted by the criminal judgment execution body of a district-level police office or military zone-level criminal judgment execution body, the chief justice of the district-level people’s court of the locality where the convict resides or chief justice of the regional military court of the locality where the convict works shall set up a council to consider shortening the probation period of the suspended sentence and assign a judge to examine the dossier of request.

Within 5 working days after receiving the dossier of request, the assigned judge shall fix the date of opening a meeting to consider shortening the probation period of the suspended sentence and send a written notice to the same-level procuracy for appointing a procurator to attend the meeting.

The time limit for opening the above meeting is 15 days after the court receives the dossier of request for shortening the probation period.

If finding it necessary to have more documents in the dossier or finding an unclear document in the dossier, the judge may request the criminal judgment execution body to add documents or clarify the unclear document. In this case, the time limit for opening a meeting shall be counted from the date the court receives the added documents or written explanations about unclear matters.

2. The council for considering shortening the probation period of a suspended sentence must be composed of 3 judges. A meeting for considering shortening the probation period shall be attended by a procurator of the same-level procuracy.

3. The order and procedures for considering shortening the probation period of a suspended sentence are prescribed as follows:

a/ A member of the council shall present contents of the written request for shortening the probation period;

b/ The procuracy’s representative shall give his/her opinions;

c/ The council shall discuss and decide to shorten the probation period.

4. Based on the dossier and opinions of the procuracy’s representative, the council for considering shortening the probation period of a suspended sentence may:

a/ Accept the whole request for shortening the probation period. In this case, if the remaining probation period is no more than one month, the council may reduce it to zero;

b/ Accept part of the request for shortening the probation period;

c/ Reject the request for shortening the probation period.

5. A decision to settle a request for shortening the probation period of a suspended sentence shall be made according to Form No. 01 provided together with this Resolution and must have the following contents:

a/ Date of issuance;

b/ Name of the issuing court;

c/ Composition of the council for considering shortening the probation period; representative of the people’s procuracy; secretary of the meeting;

d/ Full name and place of residence or workplace and other necessary information of the convict concerned;

dd/ Considerations of the court and grounds for accepting the whole or part of the request for shortening the probation period of the suspended sentence or rejecting the request;

e/ The court’s ruling on acceptance of the whole or part of the request for shortening the probation period of the suspended sentence or rejection of the request. In case of rejecting the request, the court shall clearly state the reason.

6. The sending of a decision to settle a request for shortening the probation period of a suspended sentence must comply with the Law on Execution of Criminal Judgments.

7. A decision to settle a request for shortening the probation period of a suspended sentence may be protested against by the same-level or immediately higher-level procuracy according to the appellate procedures. The appellate examination of such a decision shall be carried out according to the procedures for appellate examination of decisions prescribed by the Criminal Procedure Code. A decision to settle a protest against a decision to settle a request for shortening the probation period of a suspended sentence shall be made according to Form No. 03 provided together with this Resolution.

8. A decision to settle a request for shortening the probation period of a suspended sentence will become legally effective from the date of expiration of the time limit for protest according to the appellate procedures.

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

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 prescribed in the Law on Execution of Criminal Judgments twice or more during the probation period.

Article 11.Competence, order, procedures and time limit for considering and deciding to force a convict entitled to suspended sentence to serve the imprisonment penalty of a judgment entitling him/her to suspended sentence

1. Within 3 working days after the receipt of a dossier of request for forcible serving of the imprisonment penalty of the judgment entitling a convict to suspended sentence submitted by the criminal judgment execution body of a district-level police office or military zone-level criminal judgment execution body, the chief justice of the district-level people’s court of the locality where the convict resides or chief justice of the regional military court of the locality where he/she works shall set up a council to consider forcing the convict entitled to suspended sentence to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence and assign a judge to examine the dossier of request.

Within 5 working days after receiving the dossier of request, the assigned judge shall fix the date of opening a meeting to consider forcing the convict entitled to suspended sentence to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence and notify it in writing to the same-level procuracy for appointment of a procurator to attend the meeting.

The time limit for opening the meeting is 15 days after the court receives the dossier of request for forcible serving of the imprisonment penalty of the judgment entitling the convict to suspended sentence.

If finding it necessary to have additional documents in the dossier or a document in the dossier unclear, the judge may request the requesting body to add documents or clarify the unclear document. In this case, the time limit for opening a meeting shall be counted from the date the court receives the added document or written explanations on the unclear matter.

2. The council for considering forcing a convict entitled to suspended sentence to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence must be composed of 3 judges. A meeting for considering forcing a convict entitled to suspended sentence to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence shall be attended by a procurator of the same-level procuracy.

3. The order and procedures for considering forcing a convict entitled to suspended sentence to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence are prescribed as follows:

a/ A member of the council shall present contents of the written request for forcible serving of the imprisonment penalty of the judgment entitling the convict to suspended sentence;

b/ The procuracy’s representative shall give his/her opinions;

c/ The council shall discuss and decide on forcible serving of the imprisonment penalty of the judgment entitling the convict to suspended sentence.

4. Based on the dossier and opinions of the procuracy’s representative, the council for considering forcible serving of the imprisonment penalty of the judgment entitling a convict to suspended sentence may:

a/ Accept the request.

b/ Reject the request.

5. A decision to settle a request for forcible serving of the imprisonment penalty of the judgment entitling a convict to suspended sentence shall be made according to Form No. 02 provided together with this Resolution and must have the following contents:

a/ Date of issuance;

b/ Name of the issuing court;

c/ Composition of the council; representative of the people’s procuracy; secretary of the meeting;

d/ Full name and place of residence or workplace and other necessary information of the convict requested to be forced to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence;

dd/ Considerations of the court and grounds for accepting or rejecting the request;

e/ The court’s ruling on acceptance or rejection of the request.

6. Within 3 working days after issuing a decision to settle a request for forcible serving of the imprisonment penalty of the judgment entitling a convict to suspended sentence, the court shall send such decision to the convict, the body requesting forcible serving of the imprisonment penalty, same-level procuracy, competent criminal judgment execution body, immediately higher-level procuracy, the court that has issued the decision on execution of the imprisonment judgment entitling the convict to suspended sentence, and provincial-level Justice Department of the locality where the decision-issuing court is located.

7. A decision to settle a request for forcible serving of the imprisonment penalty of the judgment entitling a convict to suspended sentence may be appealed or protested against. The appellate examination of such a decision shall be carried out according to the procedures for appellate examination of decisions prescribed by the Criminal Procedure Code. A decision to settle an appeal or a protest against a decision to settle a request for forcible serving of the imprisonment penalty of the judgment entitling a convict to suspended sentence shall be made according to Form No. 03 provided together with this Resolution.

8. A decision to settle a request for forcible serving of the imprisonment penalty of the judgment entitling a convict to suspended sentence will become legally effective from the date of expiration of the time limit for appeal or protest according to the appellate procedures, provided no appeal or protest is filed.

Article 12.Effect

1. This Resolution was adopted by the Judicial Council of the Supreme People’s Court on May 15, 2018, and takes effect on July 1, 2018.

2. This Resolution replaces Resolution No. 01/2013/NQ-HDTP of November 6, 2013, of the Judicial Council of the Supreme People’s Court, guiding the application of Article 60 of the Penal Code regarding suspended sentence. Other guidance of the Judicial Council of the Supreme People’s Court on suspended sentence contrary to this Resolution is now annulled.

3. For offenders adjudicated before the effective date of this Resolution under the previous guiding documents and the judgments against them have become legally effective, this Resolution may not be used as a basis for protest according to the cassation or reopening procedures.

4. For convicts entitled to suspended sentence before January 1, 2018, the provisions of Clause 5, Article 65 of the Penal Code and this Resolution may not be applied to force them to serve the imprisonment penalties of judgments entitling them to suspended sentence if they have intentionally breached their obligations prescribed in the Law on Execution of Criminal Judgments twice or more during their probation periods.

5. Any matters arising in the course of implementation of this Resolution which need explanations or additional guidance should be reported to the Supreme People’s Court (through the Legal Affairs and Science Management Department) for timely explanation or additional guidance.-

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

* The forms issued together with this Resolution are not translated.