Comments and Evaluation of the Current Status of Criminal Law Application to the Crime of Illegal Drug Trafficking in Tay Ninh City, Tay Ninh Province

In 2020, Tay Ninh City People's Court applied the Penal Code to decide on penalties for 628 MBTPCMT cases with 985 defendants; of which, 100% of the defendants were sentenced to fixed-term imprisonment (285 defendants were sentenced to fixed-term imprisonment from 07 years to 15 years, accounting for 45.5%; 343 defendants were sentenced to fixed-term imprisonment up to 07 years, accounting for 54.6%).

Conducting research on 100 judgments on the crime of MBTPCMT with 207 defendants, the most common MBTPCMT crime brought to trial was the case of committing the crime twice or more, accounting for 55%. The basic penalty frame applied to defendants committing the crime of MBTPCMT was 34/100 cases, the remaining 66 cases were all cases subject to the application of the increased penalty frame according to Point g, Clause 1, Article 52 of the Penal Code (when there is no sign of conviction or penalty frame - Clause 2, Article 52).

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The most commonly applied penalty is fixed-term imprisonment, the lightest being 24 months (07 cases) and the heaviest being 15 years (06 cases). The rate of fair and lawful trials is 97/100 cases, accounting for 99.97%, only 3/100 trials have errors and mistakes, accounting for 0.03%. Thus, it can be seen that Tay Ninh City People's Court has effectively applied the provisions of the Penal Code and guiding documents on MBTPCMT, from which the judgments when brought to trial are always in accordance with the law, and this rate is almost absolute. In the majority of MBTPCMT crimes when brought to trial, the defendants who committed this crime often MBTPCMT in large quantities, bought and sold many times, with sophisticated methods and tricks of crime.

In fact, during the trial, the People's Court of Tay Ninh City ADPL still encountered some difficulties in determining the crime, thereby causing difficulties in deciding on the punishment.

For example: On December 9, 2016, at house number 02, alley 27, Tran Hung Dao street, Quarter 1, Ward 1, Tay Ninh city, Tay Ninh province, the Investigation Police Agency of Tay Ninh Provincial Police searched and urgently arrested Ms. Tran.

Thi TA was hiding 3 bags of synthetic drugs in a cardboard box. During the investigation and at the trial, Tran Thi TA confessed: An started to be addicted to synthetic drugs since 2013, had feelings for T, TA was given drugs by T many times to use. TA divided them into many small packages to use and sell to others. The Trial Panel had sufficient grounds to conclude that the defendant Tran Thi TA committed the crime of MBTPCMT and the penalty is prescribed in Point b, Clause 2, Article 194 of the Penal Code. When deciding on the sentence, the Trial Panel also considered aggravating and mitigating circumstances such as the defendant's honest testimony, showing remorse, and confessing to her actions before they were discovered.

Thus, the above case shows that Ms. TA should only be prosecuted for the crime of MBTPCMT with the mitigating circumstance of "self-confession". It is very difficult to determine the buyer and seller, only the offender confesses, so there is enough basis to determine that the defendant committed the crime of MBTPCMT. If in the above case the defendant did not confess, then the defendant should only be prosecuted for the crime of "illegal possession and use of narcotics".

Due to the complicated situation of MBTPCMT crimes in Tay Ninh city in recent years, the provincial and city levels and sectors have directed that the decision on penalties for MBTPCMT crimes must be commensurate with the criminal acts, ensuring deterrence and general prevention.

Through the annual evaluation of the trial work, it shows that the judgments on the crime of MBTPCMT tried by the People's Court of Tay Ninh city in recent years have always ensured the right person, the right crime , and the right law, especially in compliance with the provisions of the Penal Code to apply punishment.

For example: Judgment No. 44/2017/HSST, dated August 30, 2017 of the People's Court of Tay Ninh city applied point b, clause 2, Article 194, points o, p, clause 1, Article 46 of the Penal Code to sentence defendant Than Van C to 07 years in prison; Applying point b, clause 2, Article 194, points o, p, clause 1, clause 2, Article 46; Article 47 of the Penal Code to sentence defendant Than Van C to 07 years in prison.

Sentenced defendant Than Van B to 05 years in prison, for the crime of MBTPCMT for the following acts: On November 29, 2016, at the Petro gas station in Quarter 7, Ward 3, Tay Ninh City, Tay Ninh Province, defendant Than Van C sold to Than Van B 01 packet of heroin weighing 0.0252 grams, 74.6% content for 200,000 VND. At about 11:40 a.m. on the same day, at the La Do coffee shop in Quarter 7, Tay Ninh City, Tay Ninh Province, defendant Than Van B sold to Tran Quoc H and Mai Trung Ph 02 packets of heroin weighing 0.0426 grams for 400,000 VND, and was caught red-handed with the evidence. The acts of defendants Than Van C and Than Van B had sufficient elements to constitute the crime of MBTPCMT. In addition, before being arrested on November 14, 2016 in front of the hospital gate of Tay Ninh city, Tay Ninh province, defendant Than Van C sold drugs to defendant Than Van B once, 1 pack for 200,000 VND. In this case, when deciding on the main penalty, the Trial Panel also correctly and fully applied the provisions of the Penal Code with clear differentiation of penalties, commensurate with the nature and severity of each criminal act.

In fact, the decision on penalties of the People's Court of Tay Ninh City, Tay Ninh Province for MBTPCMT cases also encountered many violations and shortcomings in the trial work. For example, the verdict did not fully apply the aggravating circumstances of criminal responsibility for the defendant; the verdict did not recover the money obtained from the crime; and did not declare the confiscation of the means used to commit the crime.

For example: Judgment No. 22/2018/HSST of the People's Court of Tay Ninh City tried the defendants Le Van N and Nguyen Tran D for the crime of "Illegal trading of narcotics" under Clause 1, Article 194 of the 1999 Penal Code. On November 10, 2017, N invited D - DOB: September 2, 2000 (at the time of the crime, Dat was only 17 years, 2 months and 8 days old) to illegally trade narcotics and was arrested, but when the trial was held, the People's Court of Tay Ninh City did not apply the aggravating circumstance of criminal responsibility "inciting a minor to commit a crime" under Point n, Clause 1, Article 48 of the 1999 Penal Code to the defendant Ninh, which is incorrect.

Or the Judgment does not recover the money from the crime; does not declare the confiscation of the means used to commit the crime: As in the first instance criminal judgment No. 20/2017/HSST of the People's Court of Tay Ninh city, trying defendant Phung Duc C for the crime of "Illegal trading of narcotics" according to point b, clause 2, article 251 of the 2015 Penal Code. In this case, the Investigation Agency also proved that in addition to being caught red-handed, C also illegally sold narcotics to Nguyen Van A once more on December 5, 2017 for 300,000 VND; at the first instance trial, this content was also leaked, but the Court of First Instance did not declare the recovery of this amount.

2.3. Comments and assessments on the current status of criminal law application to the crime of illegal drug trafficking in Tay Ninh city, Tay Ninh province

2.3.1. Advantages

Over the past 5 years, the People's Court of Tay Ninh City, Tay Ninh Province has made great efforts to resolve all types of cases in general and MBTPCMT cases in particular, achieving a high rate in both quantity and quality, especially without backlogs or cases that are overdue by law. The trial of drug cases has basically ensured the right person, the right crime, and the right law. Many serious cases have been promptly brought to public and strict trial by the People's Court of Tay Ninh City in close coordination with the prosecution agency; the penalties applied to the offenders are strict, appropriate, and have received public approval. The trial of MBTPCMT cases by the People's Court of Tay Ninh City has contributed to the effective implementation of the Action Program of Tay Ninh Province on preventing and combating drug crimes, thereby contributing to educating people to raise their legal awareness, vigilance, and fight against drug crimes.

Also in Tay Ninh, the People's Committee of Tay Ninh province also held a conference to sign a cooperation agreement on controlling drugs, psychotropic substances and drug precursors between Tay Ninh province (Vietnam) and provinces of the Kingdom of Cambodia. There was coordination

The close cooperation between Tay Ninh province and the three provinces of SwayRieng, Thoung Khmum, Prey Veng (Kingdom of Cambodia) in preventing, combating and controlling drugs on the Tay Ninh border has achieved many results, contributing to maintaining stability and security on both sides of the border, promoting the friendly relationship and solidarity between the border provinces to develop more and more.

From 2016 to September 2019, Tay Ninh province's authorities arrested and prosecuted 40 cases, 58 defendants for illegally buying, selling, and transporting drugs across the border, seizing 103.64 kg of synthetic drugs. Typically, in 2017, Tay Ninh province's authorities coordinated with BaVet City Police, SwayRieng Province, Kingdom of Cambodia to expand the investigation of a case, seizing about 63,481 synthetic drug pills (weighing about 17 kg) and handed them over to BaVet City Police for handling.

To achieve better results in the trial of criminal cases in general and the MBTPCMT drug case in particular, in the coming time, the People's Court of Tay Ninh city needs to regularly organize experience sharing for cases that have been seriously annulled or revised for Judges and People's Jurors of the two-level People's Court. Thereby, organizing experience sharing of the Criminal Court and District Court, each unit to reveal the causes of annulled or revised cases, propose effective solutions to minimize annulled or revised cases... in order to judge fairly, the right person, the right crime, and the right law.

2.3.2. Limitations, shortcomings and causes

Besides the results achieved in recent years, the trial of MBTPCMT crimes of Tay Ninh City People's Court still has the following limitations:

- Trial practice has shown that drug crimes in general and MBTPCMT crimes in particular are often investigative in nature. Prosecution agencies mainly rely on the statements of criminals to investigate, prosecute, and prosecute.

crimes of the defendants. However, in many cases the subjects are people who have been tried many times for drug-related crimes, so they have a lot of " experience " in dealing with the prosecution agency.

- The number of drug cases in general and MBTPCMT crimes in particular tends to increase, many large and complicated cases, but the quality of settlement and trial is not really guaranteed; there are still judgments that need to be revised; the time limit for settlement and trial of cases according to the provisions of law in some cases is still violated.

In some cases, when the appeal was heard, the Appeal Court revised the first instance judgment of the Tay Ninh City People's Court and argued that the penalty applied to the defendant was too light. Therefore, the appeal court revised the judgment in the direction of changing the sentence from life imprisonment to death penalty. Although according to the provisions of the law, the appeal judgment was not wrong, but when looking at it objectively and impartially, if taking into account the fact that when investigating complex, transnational cases, the next big cases will encounter difficulties because the defendants will be mentally prepared in advance, that confessing will "die" and not confessing will "die" as well , so there will be cases where criminals do not cooperate with the investigation agency when arrested, causing many difficulties for the investigation process of drug trafficking cases.

- Or in some MBTPCMT cases, the appellate court has revised the judgment in a direction that is not accurate in favor of the defendant, without properly assessing the nature of the crime and the personal characteristics of the defendant, leading to the wrong person being tried for the right crime, and criminals being let go. The prosecution agencies have not researched, consulted, thoroughly grasped and learned from experience in the process of investigation, prosecution and trial of criminal cases.

For example, the following case:

At about 12:30 p.m. on November 18, 2017, the Drug Crime Investigation Police Department of Tay Ninh City Police discovered a car with license plate

70B-057. 81 driven by Tran Van N, Ha Quoc P sitting in the passenger seat showed suspicious signs, so the two subjects and the car were brought to the Tay Ninh City Police headquarters for inspection. The results of the search of the car above discovered and seized 2

White powder cake and 120 pink tablets .

In the Conclusion of the appraisal No. 6589/KLGD-PC54 dated November 28, 2017, the Criminal Techniques Department of Tay Ninh City Police concluded: 2 cakes of white powder were both Heroin drugs, with a total weight of 707.76 grams; 120 pink tablets were all Methamphetamine drugs, with a total weight of 11.25 grams.

Tran Van N stated : On November 15, 2017, a man named K living in Tan Cuong district, Tay Ninh called N and said he had drugs to sell and asked N to find a buyer, Nghi agreed. At about 5:00 a.m. on November 18, 2017, K called and told N to go to the bushes on the side of the road in Tan Cuong district to get 2 cakes of Heroin; K told N to sell them for 160 million VND/cake. After that, N went to the bushes as instructed by K and found 2 cakes of Heroin and 1 bag of opium , so he brought them back and hid them in a car with license plate 70B-057. 81. N planned to bring the drugs to Binh Duong to sell. On the morning of November 18, 2017, N drove a car with Ha Quoc P to drive to Binh Duong. At about 12:30 p.m. the same day, N went to the center of Tay Ninh city and was discovered and caught red-handed with the above drugs.

In the First Instance Criminal Judgment No. 157/2018/HSST dated May 3, 2018, the People's Court of Tay Ninh City applied Point h , Clause 4, Article 194 of the 1999 Penal Code; Point s , Clause 1, Article 51; Article 40 of the 2015 Penal Code, amended in 2017, to sentence Tran Van N to death for the crime of MBTPCMT .

On May 4, 2018, Tran Van N filed an appeal to reduce his sentence. In the Criminal Appeal Judgment No. 540/2018/HSPT dated August 15, 2018, the High People's Court in Ho Chi Minh City accepted the appeal of defendant N, amended the first instance judgment, applied point h, clause 4, Article 194 of the 1999 Penal Code; points s, t clause 1, clause 2, Article 51, Article 39 of the 2015 Penal Code, sentenced N to life imprisonment.

on the crime of MBTPCMT .

In the Decision on appeal for review No. 07/QD-VKSTC-V7 dated August 14, 2019, the Chief Justice of the Supreme People's Procuracy appealed the Criminal Appeal Judgment No. 540/2018/HSPT dated August 15, 2018 of the High People's Court in Ho Chi Minh City. Requesting the Supreme People's Court's Judicial Council to conduct a review trial in the direction of

Annul the penalty decision of the above-mentioned appellate criminal judgment, uphold the penalty decision of the First Instance Criminal Judgment No. 157/2018/HSST dated May 3, 2018 of the People's Court of Tay Ninh City, sentencing Tran Van N to death for the crime of MBTPCMT.

In the Final Appeal Decision No. 07/2020/HS-GDT dated June 16, 2020, the Supreme People's Court's Judicial Council decided to annul the Criminal Appeal Judgment No. 540/2018/HSPT dated August 15, 2018 of the High People's Court in Ho Chi Minh City regarding the decision on the penalty for N; to maintain the penalty decision of the First Instance Criminal Judgment No. 157/2018/HSST dated May 3, 2018 of the Tay Ninh City People's Court against Tran Van N.

- The issue of consistency in determining the crime of possession and illegal possession of narcotics according to the provisions of the 2015 Penal Code still faces many shortcomings. In practice, there are cases where: During the entire investigation and prosecution process, the accused confessed to illegally storing narcotics for the purpose of selling to anyone who buys them, but the prosecution agency assessed the evidence and said: In addition to the accused's statement, the specific buyer could not be identified, so there was not enough basis to determine that the accused committed the crime of Buying and Selling, but the accused only committed the crime of Illegal Possession of narcotics. Or in the case where, in addition to 01 completed drug sale, the accused also stored 0.1 gram of Heroine for the purpose of selling to anyone who buys them (the buyer could not be identified), the Procuracy prosecuted 02 crimes of illegal possession of narcotics under Article 251 and illegal possession of narcotics under Article 249. The court held that the accused only committed one crime of illegal possession of narcotics, for 0.1 gram of Heroine for sale.

In real life, usually the seller (of any item)