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THE JUDGES'
COUNCIL OF THE SUPREME PEOPLE'S COURT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
01/2013/NQ-HDTP
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Hanoi, November
06, 2013
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RESOLUTION
GUIDING THE APPLICATION
OF ARTICLE 60 OF THE PENAL CODE REGARDING SUSPENDED SENTENCE
Pursuant to the Law on
Organization of People’s Courts;
In order to apply
properly and uniformly Article 60 of the Penal Code;
After reaching agreement
with the Chairperson of the Supreme People’s Procuracy and the Minister of
Justice,
RESOLVES:
Article 1. Suspended
sentence
Suspended sentence means
the conditional exemption from execution of the penalty of imprisonment which
is applied by the court to an offender who is sentenced to termed imprisonment
not more than 3 years, when the court, based on the personal background of the
offender and extenuating circumstances, sees it unnecessary to compel the
execution of the imprisonment.
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1. A person sentenced to
imprisonment maybe considered the application of suspended sentence only when
fully satisfying the following conditions:
a) He/she is sentenced to
imprisonment not more than 3 years for a less serious crime, serious crime or
very serious crime as classified in Clause 3, Article 8 of the Penal Code;
b) He/she has a good
personal background as proved that he/she, except the commission of this crime,
has always respected the public rules, properly observed law and policies,
fulfilled civil obligations in his/ her residence place and workplace; never
violated law-prescribed prohibitions; and never been convicted,
administratively handled or disciplined.
Offenders who had
previous convictions already been removed or automatically been removed will be
regarded as having never been convicted; or offenders who had been
administratively handled or disciplined are now regarded as having never been
administratively handled or disciplined because the duration after which they
will be regarded as so has expired or the statute of limitations for
administratively handling or disciplining them has expired but their personal
backgrounds will not be regarded as good. The application of suspended sentence
to these persons must be taken into careful consideration. Only those who fall
into any of the following cases may be considered the application of suspended
sentence:
b1) Those who had been
sentenced to between over 3 and 15 years of imprisonment for a crime committed
intentionally (including the case of augmentation of penalties for many crimes
or under many judgments) and have had such conviction removed for more than 2
years by the date of committing this new crime;
b2) Those who had been
sentenced to up to 3 years of imprisonment for a crime committed intentionally
and have had such conviction removed for more than 1 year by the date of
committing this new crime;
b3) Those who had been
convicted of a crime and subjected to caution, fine or non-custodial reform and
have had such conviction removed for over 1 year by the date of committing this
new crime;
b4) Those who had been
convicted of a crime committed unintentionally and have had such conviction
removed;
b5) Those who had been
sent to compulsory education establishments twice or more and have been
regarded as having never been applied the measures of administrative handling
for more than 2 years by the date of committing this new crime;
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b7) Those who had been
sent to compulsory education establishments and have been regarded as having
never been administratively handled for more than 18 months by the date of
committing this new crime;
b8) Those who had been
administratively handled or disciplined twice or more and have been regarded as
having never been administratively handled or disciplined for more than 18
months by the date of committing this new crime;
b9) Those who had been
administratively sanctioned or disciplined for an act of the same nature with
this new crime and have been regarded as having never been administratively
sanctioned or disciplined for more than 1 year by the date of committing this
crime;
b10) Those who had been
administratively sanctioned or disciplined and have been regarded as having
never been administratively sanctioned or disciplined for more than 6 months by
the date of committing this new crime;
b11) Those who have been
subject to the administrative handling measure of education in communes, wards
or townships or sending to compulsory detoxification establishments and are now
regarded as having never been administratively handled after the prescribed
duration expires;
c) He/she has a place of
residence with a specific and clear address;
d) He/she has no
circumstance aggravating his/her penal liability specified in Clause 1, Article
48 of the Penal Code and has two or more circumstances extenuating his/her
penal liability, including at least one extenuating circumstance specified in
Clause 1, Article 46 of the Penal Code. If he/she has one aggravating
circumstance, he/she must have three or more extenuating circumstances,
including at least two ones specified in Clause 1, Article 46 of the Penal
Code.
Extenuating circumstances
as prescribed in Clause 2, Article 46 of the Penal Code are ones guided at
Point c, Section 5 of Resolution No. 01/2000/NQ-HDTP dated August 04, 2000, of
the Judges’ Council of the Supreme People’s Court, guiding the application of a
number of provisions in the General Part of the 1999 Penal Code;
e) He/she can reform
himself/herself and his/her exemption from execution of the imprisonment
penalty will not adversely affect the prevention and combat of crimes,
especially corruption.
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a) He/she is an offender
that must be severely punished as defined in Clause 2, Article 3 of the Penal Code,
including conspirator, ringleader, commander, die-hard oppositionist,
scoundrel, hooligan, dangerous recidivist, one who has abused his/her position
and powers to commit the crime, one who has committed the crime with
treacherous ploys, in an organized and professional manner, or with the
intention to cause serious consequences; he/she commits a particularly serious
crime;
b) He/she is tried at a
time for more than one crime;
c) His/her record shows that
in addition to having committed this crime and being brought to trial, he/she
had also committed another crime for which he/she has been tried in another
case or he/she is currently subject to the institution of, investigated or
prosecuted in another case;
d) He/she is an on-bail
defendant absconding in the stage of preparation for trial and the Court has
requested the investigative agency to hunt for him/her.
3. When considering and
deciding application of suspended sentence to a person sentenced to imprisonment,
attention must be paid to the following:
a) If he/she has been
held in custody or temporary detention, suspended sentence may be applied only
when the period of custody or temporary detention is shorter than the
imprisonment term;
b) If an offender has
many extenuating circumstances and fully satisfies the conditions for
application of Article 47 of the Penal Code, it is the lenience policy that
he/she is sentenced to the next lighter penalty bracket. He/she may not be
sentenced to imprisonment and enjoy suspended sentence for a crime which is
condemned by the public opinion, especially position-related crimes, with
the aim to intensifying the prevention and combat of crimes in general and the
prevention and combat of corruption in particular;
c) If there is a circumstance determining the penalty bracket
in aggravating direction which is not prosecuted by
the procuracy, such circumstance must still be applied in the adjudication of
his/her case in accordance with law; if he/she has any circumstance aggravating
his/her penal liability as prescribed in Article 48 of the Penal Code, such
circumstance must be applied fully. All circumstances determining the
penalty bracket in aggravating direction and
aggravating the penal liability specified in Article 48 of the Penal Code must
be applied, whether or not suspended sentence is be considered;
d) When deciding on
penalties, the court must adhere to the handling principles specified in
Article 3 of the Penal Code combined with the bases for deciding penalties
specified in Article 45 of the Penal Code. The court shall neither regard
suspended sentence as a penalty lighter than the penalty of imprisonment so as
to groundlessly impose more heavy penalties in other cases and hand down
suspended sentence, nor arbitrarily reduce the penalty of imprisonment to
satisfy the condition related to duration of imprisonment specified in Article
60 of the Penal Code and apply suspended sentence.
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When applying suspended
sentence to a person sentenced to imprisonment, the court must set a test
period which is twice as long the imprisonment term but must be between one
year and five years.
Article 4. Starting
time of test period
The starting time of a
test period is the first date of judgment declaration to apply suspended
sentence, specifically as follows:
1. If the first-instance
court hands down suspended sentence, the judgment is not appealed or protested
against according to the appellate procedures, the starting time of the test period
will be the date of first-instance judgment declaration.
2. If both the
first-instance and appellate courts hand down suspended sentence, the starting
time of the test period will be the date of first-instance judgment
declaration.
3. If the first-instance
court does not hand down suspended sentence but the appellate court hands down
suspended sentence, the starting time of the test period will be the date of
appellate judgment declaration.
4. If the first-instance
court hands down suspended sentence, the appellate court does not hand down
suspended sentence, but the cassation court quashes the appellate judgment for
retrial according to appellate procedures and hands down suspended sentence,
the test period will be counted from the date of first-instance judgment
declaration.
5. If both the
first-instance and appellate courts have handed down suspended sentence but the
first-instance and appellate judgments are quashed for reinvestigation, then
the first- instance and appellate courts again still hand down suspended
sentence during retrial according to first-instance and appellate procedures,
the test period will be counted from the date of subsequent first-instance or
appellate judgment declaration as guided in Clauses 1, 2, 3 and 4 of this
Article.
Article 5. Handover of persons entitled to suspended sentence to
the commune-level People’s Committees or Army units for supervision and
education during the test period
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2. When handing over a
person enjoyed suspended sentence to the commune-level People’s Committee where
he/she resides for supervision and education during the test period, the court
must clearly indicate the name of the commune-level People’s Committee; the
name of the district, town or provincial-level city; the name of the province
or centrally-run city assigned to supervise and educate such person, and
concurrently clearly indicate that in case such person changes his/her
residence place, Clause 1, Article 69 of the Law on Execution of Criminal
Judgments must be complied with.
3. When handing over a
person enjoyed suspended sentence to an Army unit for supervision and education
during the test period, the court must clearly indicate the name and full
address of such Army unit, and concurrently state that in case such person
changes his/her workplace, Clause 2, Article 69 of the Law on Execution of
Criminal Judgments must be complied with.
Article 6. Augmentation of penalties in case where the person
enjoyed suspended sentence commits a new crime during the test period
If a person enjoyed
suspended sentence commits a new crime during the test period, the court shall
decide on a penalty for such crime and augment it and the penalty of
imprisonment in the previous judgment according to Articles 50 and 51 of the
Penal Code. If such person has been held in custody or temporary detention, the
period of custody or temporary detention for the crime tried in this time and
that for the previously tried crime in the previous judgment may be cleared
against the term of execution of imprisonment.
Article 7. Case in which a person enjoyed suspended sentence for a
crime is brought to trial for another crime committed before the suspended
sentence is handed down to him/her
In case where it is
detected that a person currently enjoyed suspended sentence for a crime has
committed another crime before the suspended sentence is handed down to
him/her, the court shall adjudicate and decide
on a penalty for such crime but may not hand down suspended sentence to him/her
once again. The offender shall execute both judgments. The judgment in this
case is executed by agencies assigned responsibility for criminal judgment
execution in coordination with one another as prescribed in Article 5 of the Law
on Execution of Criminal Judgments.
Example: On December 15,
2011. Bui Van B committed the crime of gambling. On March 20, 2012, he was
sentenced by the People’s Court of city V to 6 months of imprisonment for
gambling but applied to suspended sentence with a test period of 1 year. After
being convicted for gambling and the judgment takes legal effect, the
investigative police agency detects that earlier on October 10, 2011 he also
committed the crime of stealing property and was prosecuted before the court of
district M. In this case, the court of district M would not hand down suspended
sentence to him once again. If the judgment of the court of district M is not
appealed or protested against and takes legal effect, he shall execute both the
judgments (one of the People’s Court of city V and one of the People’s Court of
district M).
Article 8. Effect
1. This Resolution was
adopted by the Judges’ Council of the Supreme People’s Court on October 14,
2013, and takes effect on December 25, 2013.
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3. For offenders tried
before the effective date of this Resolution in accordance with the previous guiding
documents with judgments having taken legal effect, this Resolution does not
serve as the base for making protests against such judgments according to the
cassation or reopening procedures, unless there is another ground for protest.
4. In the course of
implementation, any problems arising which need to be additionally explained or
guided should be reported to the Supreme People’s Court for timely additional
explanation or guidance.
ON BEHALF OF
THE JUDGES’ COUNCIL
CHIEF JUSTICE OF THE SUPREME PEOPLE’S COURT
Truong Hoa Binh