Resolution No. 01/2013/NQ-HDTP dated November 06, 2013, guiding the application of article 60 of the Penal Code regarding suspended sentence

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