Kiet was not supervised or educated while the defendant Kiet's prison sentence was due on May 13, 2016.
Second, the responsibility of those assigned to directly supervise and educate those on suspended sentences as well as sanctions when violations occur.
During the process of serving a suspended prison sentence at the local level, whether the purpose of giving a suspended sentence to a criminal is achieved or not depends on the offender's own self-awareness and the family's care and support, and the person directly supervising and educating plays a very important role in the execution of the suspended sentence.
Clause 1, Clause 3, Article 64 of the Law on Enforcement of Criminal Judgments stipulates the obligations of persons enjoying suspended sentences, stating that without direct, close and timely supervision by the individual assigned to directly supervise and educate, it is impossible to detect violations of obligations by persons enjoying suspended sentences and to ensure that the execution of suspended sentences is in accordance with the law. Therefore, only when there is someone directly supervising and educating the person enjoying suspended sentences will he or she be aware of fulfilling his or her obligations as prescribed in the Law on Enforcement of Criminal Judgments, preventing the person enjoying suspended sentences from reoffending or taking advantage of laxity to violate the law. In practice, it has been shown that in the initial period of execution, persons enjoying suspended sentences are very likely to reoffend or violate their obligations because during this time the person serving the sentence has not been reformed, educated and it is very difficult to integrate into the community. However, localities have not yet focused on monitoring and educating offenders who are given suspended sentences, so the assignment is often delayed and hasty. Reports and comments on those serving suspended sentences are sketchy, formal, and not close to reality... so in many cases, offenders easily violate their obligations due to lack of regular attention and reminders from supervisors.
Whether the Court's verdict truly demonstrates severity, deterrence, crime prevention, as well as the leniency of the law when the person serving a suspended sentence has made much progress, repented, and reformed depends largely on the effectiveness of the local supervision and education process, in which the role of the person directly supervising and educating is very important.
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2.3. Causes of shortcomings, limitations, and mistakes in applying suspended sentences in Tay Ninh province
The shortcomings, limitations, and mistakes in the process of applying the suspended sentence regime in Tay Ninh province in the past have somewhat reduced the meaning and real effectiveness of this regime, making the suspended sentence regime unable to fully promote its effect of educating criminals in the community and society while still ensuring the deterrence of the law for them. The above shortcomings and problems are due to many different causes, but some of the main causes can be listed as follows:
First: The cause is due to the inadequate provisions of the law. First of all, the first and most important cause that directly affects the application of suspended sentences in practice in Tay Ninh province in particular and localities in the country in general is that the current legal documents of our State do not have strict and complete regulations on legal institutions, specifically in the Penal Code there is no definition of what a suspended sentence is, but only recorded in Resolution 02/2018, leading to the perception of some participants in the proceedings about suspended sentences being inconsistent, causing difficulties and limitations in the process of perceiving and applying suspended sentences.
In addition, the provision of the phrase "deeming it unnecessary to enforce the prison sentence" in the guidance of Resolution 02/2018 is not yet complete, clear, and reasonable. Clause 5, Article 2 of Resolution 02/2018 of the Supreme People's Court's Judicial Council stipulates: if the offender has the ability to reform himself and giving him a suspended sentence does not pose a danger to society; does not adversely affect security, order, and social safety. This guidance is still general, depending entirely on the cognitive ability of the Judge and the Jury. That is, if it is found that giving the offender a suspended sentence will not give rise to new criminal acts by him, and will not cause disorder and social safety.
In addition, the guidance in Clause 3, Article 2 of Resolution 02/2018 of the Supreme People's Court's Judicial Council is unreasonable when it only bases the arithmetic of aggravating and mitigating circumstances without taking into account the nature of each circumstance, for example, in cases where the offender has aggravating circumstances of being a violent hooligan or barbaric, the ability to rehabilitate in the community will be limited.
Second, due to the lack of awareness and consensus on the provisions of suspended sentences by judges and people's assessors. Due to the limited awareness of some judges and people's assessors on the provisions of suspended sentences, the assessment of aggravating and mitigating circumstances of criminal responsibility as well as the process of investigation, verification and assessment of the offender's personal background in many cases is still one-sided, incomplete and lacking in objectivity... thereby greatly affecting the decision on the punishment of the panel of judges, especially the decision on whether or not to grant the offender a suspended sentence?
Resolution No. 08-NQ/TW dated January 2, 2002 of the Politburo pointed out that: “ The personnel work of judicial agencies is still lacking in quantity, weak in professional capacity, a part is negative, irresponsible, lacks courage, and has degraded moral qualities. This is a serious problem that affects legal discipline, reducing the effectiveness of the State apparatus ”. This is the reason leading to incorrect application of the law on suspended sentences, not daring to decide to give defendants suspended sentences.
Third, the provisions of the law on the execution of sentences for those serving suspended sentences are still inadequate, leading to the process of close coordination between competent State agencies assigned to monitor, manage, supervise and educate those serving suspended sentences, which is still ambiguous. The division and definition of authority associated with the responsibility of individuals in the management and education of those serving suspended sentences at State agencies, social organizations or local authorities have not been clearly demonstrated, leading to these agencies being quite indifferent to this responsibility. In addition, there are also reasons due to limitations and shortcomings in the supervision and education of those sentenced to imprisonment but given suspended sentences by local authorities, such as: The People's Committees of communes and wards assigned to manage, supervise and educate those serving suspended sentences have not seriously implemented the management, supervision and education; the management, supervision and education of those serving suspended sentences by the People's Committees of communes and wards are not strict; The responsibility of the person assigned by the Chairman of the People's Committee of the commune or ward to manage, supervise and educate is not high; the coordination between the People's Committee of the commune or ward, the person assigned to supervise and educate and the family of the person serving a suspended sentence is not effective. In addition, the
Propaganda and dissemination of laws by local State management agencies have not been really effective, so those serving suspended sentences have not raised their awareness and sense of compliance with criminal law, leading to continued criminal acts.
Fourth, the reason is due to the limited facilities of the Court sector. Through practical assessment of the court system in Tay Ninh province, it shows that the facilities, technical equipment and working means of the two-level People's Court of Tay Ninh province are increasingly being paid attention to by our Party and State, ensuring the conditions and resources to build a clean and strong Court system, but that attention and care still do not meet the requirements of judicial reform and this is also the reason why the trial of criminal cases in general and the application of suspended sentences in particular face many difficulties. To fulfill the commitment in the ASEAN Community, our country must complete the construction of the e-Court before 2025. This is a big challenge in the context that we still lack legal infrastructure, high-quality human resources and financial resources. However, many judges and people's assessors have limited English and IT skills, and have not yet accessed and used modern means and equipment proficiently. In addition, the investment budget for the activities of the Court sector is still low, the salary, bonus and treatment regime for judges and people's assessors is still low, unsatisfactory, and does not meet the material life of court staff, leading to many places where the lives of judges and people's assessors are still very difficult, so they are not assured in their work, do not have the conditions to focus on improving their knowledge of criminal law in general and the law on suspended sentences in particular, leading to incorrect and insufficient understanding of the impact on the decision on punishment for criminals who are granted suspended sentences in practice.
Chapter 2 Summary
Based on the theoretical issues of the suspended sentence regime in Chapter 1. Chapter 2 of the thesis, the author synthesizes, analyzes and evaluates the current status of the application of the suspended sentence regime in Tay Ninh province from 2016 to the end of 2020. In this chapter of the thesis, the author evaluates the situation of applying suspended sentences in relation to other sanctions at the People's Court of Tay Ninh province. Then, focusing on analyzing the practical application of suspended sentences in Tay Ninh province, the author evaluates and analyzes the current status of the results achieved, the limitations and difficulties in applying suspended sentences in Tay Ninh province, specifically: evaluating the current status of regulations on conditions for applying suspended sentences, the practical application of regulations on probation period and how to calculate the probation period of suspended sentences; the practical application of regulations on additional penalties for people enjoying suspended sentences; the practical application of regulations on cases where people serving suspended sentences commit new crimes during the probation period; Practical application of regulations on shortening the probation period of suspended sentences; practical application of regulations on handing over suspended sentence beneficiaries to agencies, organizations or local authorities for educational supervision from 2016 to the end of 2020; at the same time, analyze, evaluate and comment on the causes affecting the application of suspended sentences in Tay Ninh province in the past time.
Chapter 3
REQUIREMENTS AND SOLUTIONS TO ENSURE PROPER APPLICATION OF SUSPENDED SENTENCE
3.1. Requirements to ensure correct application of suspended sentence
3.1.1. Requirements of the rule of law and socialist humanitarian principles
Our Party and State always attach importance to the work of law-making and strengthening the socialist legal system. Along with the Party's documents, the State has issued many Resolutions, Directives and a system of other legal regulations on the work of law-making and strengthening the socialist legal system. Our country is entering a period of national construction in the context of international economic integration in a world context of rapid, complex and unpredictable changes. Hostile forces are constantly stepping up sabotage activities with insidious and cunning methods and tricks. The situation of crime and law violations is complicated. In that situation, the task of ensuring and strengthening the socialist legal system plays an increasingly important role and is an urgent requirement for the cause of protecting security and order in the context of building a socialist rule-of-law state.
The principle of socialist legality in the criminal field requires that all acts considered crimes and the applicable penalties must be prescribed in the Penal Code. There cannot be any case where a criminal is convicted of a crime not prescribed in the Penal Code. The requirements of the principle of socialist legality in criminal law include: The provision of socially dangerous acts as crimes must be prescribed in the Penal Code. Then the penalty that the Court imposes on the criminal must be appropriate to the nature and level of the crime and in accordance with the provisions of the Penal Code. And next, all cases where the Court imposes a penalty that is too heavy or too light, incorrectly and inaccurately applying the provisions of the Penal Code compared to the crime are violations of the principle of socialist legality.
In short, the requirements of the socialist legal principle in the criminal field require strict and consistent compliance with the provisions of criminal law by competent State agencies with the duty to apply criminal law in general and apply the suspended sentence regime in particular in the fight against crime.
against crime. Then it comes to agencies, organizations and all citizens in society. These are regulations on the conditions for applying suspended sentences such as: the level of punishment, the criminal's personality, aggravating and mitigating circumstances... or regulations on probation period, shortening probation period, combining penalties when the person serving a suspended sentence commits a new crime... That is, all legal regulations related to suspended sentences must be properly complied with in practice.
In addition to the requirement to ensure the legal principle in the process of applying suspended sentences, it is also required to ensure the humanitarian principle. The purpose of the regulation of the humanitarian principle is to ensure the minimum benefits of human beings, to ensure the inviolability of honor, dignity and life of each citizen. The humanitarian principle is a way to institutionalize the humanistic viewpoint for the people of the Socialist Republic of Vietnam, that tolerant viewpoint always considers the education and persuasion of human personality as the top priority, the main thing. When considering the level of their criminal behavior, the State always pays attention to many different aspects such as age, health status, their personal situation when committing the crime such as pregnancy, illness, family circumstances facing special difficulties to decide on the appropriate level of punishment for them, which comes from the morality and humanistic tradition of the Vietnamese people and that tradition is imbued in the process of building the legal system including the Vietnamese Penal Code. The humanitarian principle in the Criminal Code creates conditions for offenders to reform themselves at work or at their place of residence, giving them the opportunity to quickly reintegrate into the community, such as: regulations on exemption from criminal liability, exemption from punishment, suspended sentences and some punishments that do not deprive them of liberty such as warnings. Thus, suspended sentences can be considered as the State's leniency for cases with a low level of danger to society and it is seen that they have the ability to reform themselves, so it is necessary to set conditions for receiving a suspended sentence.
3.1.2. Requirements of the principle of ensuring human rights in Criminal Law and Criminal Procedure
Our country has been building a socialist rule of law state of the people, by the people and for the people - a state where human rights are respected and protected by law. This is demonstrated in that it does not stop at political declarations, is not only recognized in the Constitution and laws but is also protected in
reality. Human rights are all rights, freedoms and privileges recognized for humans due to their humanity, born from human nature and not created by the provisions of the current legal system. These are natural, sacred and inviolable rights given to humans by the Creator such as the right to life, the right to liberty and the pursuit of happiness, the minimum human rights that any country must protect. Human rights are a sacred and inalienable value, they exist in many areas of social life, including the right to freedom.
Every person born has the right to live in a safe environment, including a safe legal environment. Therefore, ensuring human rights in social life in general as well as ensuring human rights in the enforcement of the Criminal Law and Criminal Procedure of the people plays a particularly important role. According to the provisions of international human rights law, if a country fails to enforce human rights at both the domestic and international levels (including failing to enforce the obligation to prosecute and try criminals), that country must be held accountable before international human rights bodies. This means that those who commit human rights violations and are considered international criminals may not be punished. In addition, International Criminal Law supplements and strengthens the protection of human rights by providing for individual criminal liability and establishing the International Criminal Court to ensure justice for victims.
Therefore, the 2015 Penal Code, amended in 2017, of our country, has been promulgated with timely amendments and supplements to comprehensively institutionalize the provisions of the 2013 Constitution on human rights, meet the requirements of judicial reform, implement international commitments, and keep up with trends in penal policies in the world. The 2015 Penal Code, amended in 2017, has institutionalized the policy of limiting the application of prison sentences, expanding the application of non-prison penalties in the direction of prescribing fines as the main penalty not only for less serious offenders as stipulated in the previous 1999 Penal Code but also for serious offenders, expanding the application of penalties such as non-custodial reform or allowing offenders to enjoy suspended sentences... in the direction of closely following the spirit of the 2013 Constitution on protecting human rights, including the conditions for applying suspended sentences, and the provisions of law.