In the above case, when deciding the sentence for the defendant Chinh, because the defendant had been detained for a period of 1 month during the investigation, when the trial was held, the Court decided to sentence Chinh to 2 years in prison but suspended the sentence, the probation period was 04 years from the date of the first instance judgment... without deducting the time of detention and temporary detention. However, in practice, the People's Court of Go Dau district decided to sentence Chinh to 2 years in prison for violating regulations on road traffic participation but suspended the sentence, minus the time of detention of 1 month, the defendant had to serve the sentence of 23 months and the probation period was 04 years from the date of the judgment, minus 1 month of detention and temporary detention, so the remaining probation period was 47 months. The above decision was incorrect and was protested by the People's Procuracy of Tay Ninh province, the People's Court of Tay Ninh province amended the first instance judgment. The Court's deduction of the time the defendant was detained or imprisoned from the probation period is incorrect and not in accordance with the law, affecting the defendant's obligations.
According to the provisions of Resolution No. 01/2007/NQ-HDTP of the Supreme People's Court dated October 2, 2007 guiding the application of Article 60 of the 1999 Penal Code on suspended sentences, the provisions on the determination of the probation period and the method of calculating the probation period of a suspended sentence are as follows: When giving a person sentenced to imprisonment a suspended sentence, in all cases the Court must determine the probation period from one year to five years and distinguish as follows: a) In cases where the person sentenced to imprisonment is not detained, the probation period is equal to twice the prison sentence, but must not be less than one year and must not exceed five years. b) In cases where the person sentenced to imprisonment has been detained, the prison sentence is subtracted from the time spent in detention to determine the remaining prison sentence to be served. The probation period in this case is equal to twice the remaining prison sentence to be served, but must not be less than one year and must not exceed five years.
For example: The court sentenced A to three years in prison, suspended. Since A has already been detained for one year, the remaining prison sentence A must serve is two years (3 years – 1 year = 2 years). The court set a probation period for A of four years (2 years x 2
= 4 years).
However, according to the provisions of Clause 1, Article 38 of the Penal Code, "The time of detention and temporary detention shall be deducted from the term of imprisonment ." Therefore, the provisions on deduction of the time of detention and temporary detention from the term of imprisonment are
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The above suspension of sentence and determination of probation period is not in accordance with the provisions of the Penal Code. Although the Supreme People's Court issued Official Dispatch No. 27/TANDTC-KHXX dated February 17, 2014 guiding that " ... when determining the probation period of a suspended sentence, the time spent in detention or temporary detention shall not be deducted from the probation period...", it is still not applied consistently.
When the 2015 Penal Code came into legal effect, according to the provisions of Article 4 of Resolution No. 02/2018/NQ-HDTP guiding the application of Article 65 of the 2015 Penal Code on suspended sentences, the guidance was not specific and clear, so the application was still inconsistent. On May 6, 2021, the Supreme People's Court issued Document No. 58/TANDTC-PC guiding Article 4 of Resolution No. 02/2018/NQ-HDTP dated May 15, 2018 of the Council of Judges of the Supreme People's Court guiding the application of Article 65 of the Penal Code on suspended sentences, accordingly, the time of detention and temporary detention shall not be deducted from the term of imprisonment for offenders who are sentenced to imprisonment but given a suspended sentence. In case during the probation period they commit a new crime or violate the obligation to serve the prison sentence of the suspended sentence, when resolving the case, the Court will deduct the time they have been detained or imprisoned from the suspended sentence or the new sentence.
2.2.2.3. Limitations and mistakes in applying additional penalties to people enjoying suspended sentences
Clause 3, Article 65 of the Penal Code stipulates: The Court may decide to apply additional penalties to a person serving a suspended sentence if the applicable law stipulates this penalty. According to Clause 2, Article 32 of the Penal Code, additional penalties include: Prohibition from holding positions, practicing a profession or doing certain jobs; prohibition from residing; probation; deprivation of certain civil rights; confiscation of property; fines, when not applied as the main penalty; expulsion, when not applied as the main penalty.
This is a discretionary provision, so in practice, whether the Court applies or does not apply these additional penalties depends entirely on each crime in the case as well as the subjective assessment of the Panel of Judges. Therefore, it is basically not difficult for the Court to apply this provision on additional penalties. The practice of adjudicating VAHS cases from 2016 to the end of 2020 shows that: the cases in which the Court granted the defendant a suspended sentence with the application of additional penalties are all correct. In which,
In most cases where the defendant is given a suspended sentence, the additional penalty is a fine.
A typical example is the following case: At around 1:00 p.m. on December 8, 2019, Nguyen Tan An, Vo Thanh Sang and Ho Van Toi went to the Green Tree Cafe of Ms. Le Thi Kieu Linh in Phuoc Duc A Hamlet, Phuoc Dong Commune, Go Dau District, to drink coffee, then asked Le Minh Hoa, born in 2006, to buy 5 decks of cards. After that, Sang used 5,700,000 VND, Toi used 3,000,000 VND and An used 4,400,000 VND to gamble with money. At around 2:00 p.m. on the same day, Dang Van Su arrived and used 5,200,000 VND to gamble together. The form of gambling was playing 13-card Xap Xam with 52 Western cards. Each person takes turns to be the dealer in a round, the dealer divides the cards into 4 piles, then compares the cards with each other, the smaller card loses, the dealer has priority if the cards are equal, the dealer wins, and the remaining people have equal cards, it's a draw, each round the highest winner is 300,000 VND.
At 3:00 p.m. the same day, when Sang, Toi, An and Su were gambling with money, Su won 2,000,000 VND, Sang lost 200,000 VND, An lost
1,800,000 VND, Toi had not won or lost when he was caught red-handed by the Go Dau District Police. Considering the criminal acts of the defendants, the People's Court of Go Dau District, Tay Ninh Province
Ninh declared the defendants Nguyen Tan An, Vo Thanh Sang (Tho), Dang Van Su and Ho Van Toi guilty of "Gambling", with specific penalties as follows:
Defendant Nguyen Tan An was sentenced to 09 (nine) months in prison with a probationary period of 01 (one) year and 06 (six) months from the date of the first instance judgment. Defendant Nguyen Tan An was additionally fined 15,000,000 VND to be paid to the State budget.
Defendant Dang Van Su was sentenced to 09 (nine) months in prison with a probationary period of 01 (one) year and 06 (six) months from the date of the first instance judgment. Defendant Dang Van Su was additionally fined 15,000,000 VND to be paid to the State budget.
Defendant Ho Van Toi was sentenced to 09 (nine) months in prison with a probationary period of 01 (one) year and 06 (six) months from the date of the first instance judgment. Defendant Ho Van Toi was additionally fined 15,000,000 VND to be paid to the State budget.
Defendant Vo Thanh Sang (Tho) 09 months in prison with a probationary period of 01 year and 06 months from the date of the first instance verdict. Additional penalty for defendant Vo Thanh
To (Tho) the amount of 15,000,000 VND to pay to the State budget. (Judgment No. 32/2020 HS - ST dated May 13, 2020 of the People's Court of Go Dau district, Tay Ninh province).
Thus, in the above case, the defendants were sentenced by the People's Court of Go Dau district for gambling according to the provisions of Article 321 of the Penal Code. According to the provisions of Clause 3, Article 321 of the Penal Code, the offender can be fined from 10,000,000 VND to 50,000,000 VND. In this case, the defendants were all fined an additional amount of 15,000,000 VND, which is in accordance with the law.
2.2.2.4. Limitations and mistakes in applying regulations on cases where people serving suspended sentences commit new crimes during the probation period
The application of legal provisions on cases where people serving suspended sentences commit new crimes during their probation period has been implemented relatively well in the past, applying correctly the provisions of the Penal Code and guiding documents. From 2016 to the end of 2020, a total of 1,260 defendants were granted suspended sentences in Tay Ninh province, of which only 54 defendants committed new crimes during their probation period, accounting for 2.69%. This rate is relatively low compared to the rate of defendants granted suspended sentences nationwide. All defendants who were granted suspended sentences and committed new crimes during their probation period in Tay Ninh province were forced by the two-level People's Court to serve the sentence of the previous Judgment and combine it with the sentence of the new Judgment according to the provisions of Article 51 of the 1999 Penal Code and Article 56 of the 2015 Penal Code;
In fact, when a person serving a suspended sentence commits a new crime during the probation period, he or she will have to serve the prison sentence of the suspended sentence currently in effect and serve the sentence of the new sentence due to the new crime. That is, the Court will have to combine the penalties for the person serving a suspended sentence who commits a new crime during the probation period. These are not simple issues and the Supreme People's Court's Judicial Council has issued many documents and Resolutions guiding the implementation of this content. However, the Judges and People's Assessors of the two-level People's Court of Tay Ninh province, during the trial, carefully studied the instructions of the Supreme People's Court, correctly understood the meaning of Article 65 of the Penal Code as well as other provisions related to the combination of penalties. Therefore, although it is a complicated issue,
Although the summary of the suspended sentence applied by the two-level People's Court is relatively accurate, the shortcomings are not significant.
In addition, during the probation period, if the person serving a suspended sentence complies well and makes a lot of progress, the Court may decide to shorten the probation period. "In case the person serving a suspended sentence intentionally violates the obligations prescribed by the Law on Enforcement of Criminal Judgments 02 times or more, the Court may decide to force that person to serve the prison sentence of the Judgment that granted the suspended sentence". However, in practice, there are cases where convicts serving a suspended sentence leave the locality without reporting, while the handling sanctions are still general, causing inadequacies in the management of this subject at the locality.
Specifically, in the following case: On January 18, 2020, Dat transferred 29,000,000 VND to Tay to order 10 boxes of firecrackers, then Tay contacted a young Cambodian man to buy 10 boxes of firecrackers for 14,500,000 VND. Then, Tay asked Bao to put them in a cardboard box and bring them to Ms. Vuong Hue Dung's garage for transportation and delivery to Dat. On January 19, 2020, Ms. Dung discovered that inside the cardboard box sent by Bao were firecrackers, so she reported it to the police. On January 20, 2020, the Investigation Agency arrested Tay, Dat and Bao for emergency detention to investigate and handle.
On September 10, 2020, the People's Court of Go Dau district, Tay Ninh province sentenced defendant Nguyen Van Tay to 01 year and 06 months in prison with a suspended sentence, probation period of 03 years from the date of the first instance judgment.
Additional fine for defendant Nguyen Van Tay in the amount of 60,000,000 (sixty million) VND to be paid to the State budget.
Hand over defendant Nguyen Van Tay to the People's Committee of My Thanh Tay commune, Duc Hue district, Long An province for supervision and education during the probation period.
Sentence defendant Pham Quoc Bao to 01 year 03 months in prison with suspended sentence, probation period of 02 years 06 months from the date of first instance judgment.
Additional fine for defendant Pham Quoc Bao in the amount of 30,000,000 (thirty million) VND to be paid to the State budget.
Hand over defendant Pham Quoc Bao to the People's Committee of Tra Vong commune, Tan Bien district, Tay Ninh province for supervision and education during the probation period.
Sentence defendant Le Cam Dat (Off) to 01 (one) year in prison with suspended sentence, probation period of 02 (two) years from the date of first instance judgment.
Additional fine to defendant Le Cam Dat (Off) the amount of 25,000,000 (twenty five million) VND to pay to the State budget.
Hand over defendant Le Cam Dat (Off) to the People's Committee of Ward 10, District 8, Ho Chi Minh City for supervision and education during the probation period (Judgment No. 75/2020/HS - ST dated September 10, 2020 of the People's Court of Go Dau District, Tay Ninh Province).
However, by the end of September 25, 2020, when the Judgment of the People's Court of Go Dau district came into legal effect, Nguyen Van Tay had left the locality, My Thanh Tay commune, Duc Hue district, Long An province. In this case, the People's Committee of My Thanh Tay commune could only take measures to draw up a verification record and keep records because it could not summon them to request them to perform their obligations, review or impose administrative sanctions. Therefore, in terms of social impact, it shows that the person who must serve a suspended sentence, Nguyen Van Tay, is not managed, supervised and educated, so he is still "at large" in society, disregarding the law, thereby, the purpose and meaning of the suspended sentence as prescribed by the Penal Code are not achieved.
Thus, in addition to the case where during the probation period, the person enjoying a suspended sentence commits a new crime as prescribed in Clause 5, Article 65 of the 2015 Penal Code, the Court forces that person to serve the penalty of the previous Judgment and combine it with the penalty of the new Judgment, the Penal Code, the Law on Enforcement of Criminal Judgments as well as the documents guiding the implementation do not have specific provisions for cases where the person enjoying a suspended sentence violates his/her obligations to the extent that he/she must bear criminal responsibility according to the regulations, leading to the fact that cases where the person enjoying a suspended sentence violates his/her obligations cannot be handled.
On the other hand, Clause 5, Article 65 of the 2015 Penal Code stipulates that during the probation period, if a person enjoying a suspended sentence intentionally violates the obligations prescribed by the Law on Enforcement of Criminal Judgments 2 times or more, the Court "may" issue a decision forcing that person to serve the prison sentence of the Judgment that granted the suspended sentence. This provision is still general and arbitrary, leading to the understanding that the Court may or may not force that person to serve the prison sentence of the Judgment that granted the suspended sentence.
2.2.2.5. Limitations and mistakes in applying regulations on handing over suspended sentence beneficiaries to agencies, organizations or local authorities for educational supervision
Clause 2, Article 65 of the Penal Code stipulates: "During the probation period, the Court shall assign the person serving a suspended sentence to the agency or organization where he or she works or the local authority where he or she resides for supervision and education . "
Article 4 of Resolution No. 01/2013 and Article 5 of Resolution No. 02/2018 of the Council of Judges of the Supreme People's Court stipulate that the starting point for calculating the probation period is from the date of the announcement of the suspended sentence.
Thus, right from the date of the judgment for the defendant to be given a suspended sentence, the Court has determined a probation period and at the same time assigned that person to the agency, organization where they work or the local authority where they reside for supervision and education. The probation period is calculated from the date the Court pronounced the judgment for a suspended sentence, and during this period the person entitled to a suspended sentence has other obligations.
The process of studying the Judgments of the two-level People's Courts in Tay Ninh province shows that: All Judgments contain the content of handing over the offender to the agency, organization or local government where he/she resides for supervision and education; in which most of the defendants are handed over to the local government where he/she resides for supervision and education because the local government has a large working apparatus, has close relations with the people and grasps the information of the offender quickly and easily, thereby promoting the role of supervision and education of the offender who is given a suspended sentence.
However, the activities of monitoring and educating criminals with suspended sentences in localities across the country in general and in Tay Ninh province in particular are currently facing many shortcomings such as:
Firstly, the time to start checking and monitoring people with suspended sentences is not consistent among localities. Because checking and monitoring whether people with suspended sentences comply with the provisions of the law during the probation period or not must be calculated from the date of the judgment until the person serving the sentence completes the probation period. However, in practice, the suspended sentence execution file is only established from the time the decision to execute the sentence is made and
When the file is handed over to the People's Committee at the commune level, the military unit assigned to supervise and educate. So, during the period from when the Court announces the Judgment until there is a Decision assigning a person to directly supervise and educate, the People's Committee at the commune level and the military unit assigned to supervise and educate will supervise and educate the person serving a suspended sentence, but will almost not participate in supervising the person serving a suspended sentence. Therefore, during the period from when the judgment is announced until there is a decision assigning a person to supervise and educate the person serving a suspended sentence, no one supervises or educates, so in many cases the person serving a suspended sentence leaves the locality where he or she resides, and by the time the local government receives the decision to execute the sentence, the person himself or herself is no longer in the locality, making it difficult to supervise and educate.
As in the case: on May 13, 2016, in Binh Phu hamlet, Binh Thanh commune, Trang Bang district, Tay Ninh province, Nguyen Xuan Truong and Tran Minh Phung organized for the defendants Ngo Anh Kiet, Nguyen Van Tu, Tran Van Thanh, Huynh Van Tuan, Le Van Manh, Nguyen Phuoc Hoa, Tran Van Duong, Le Van Do to illegally gamble together in the form of cockfighting with the total amount of two bets being 25,000,000 VND (Judgment No. 74/2016/HS - ST dated August 25, 2016 of the People's Court of Trang Bang district, Tay Ninh province).
The People's Court of Trang Bang District, Tay Ninh Province applied Clause 1, Article 248; Points h and p, Clause 1, Article 46; Article 60 of the Penal Code to sentence the defendants for gambling, including defendant Ngo Anh Kiet to 04 (four) months in prison, suspended for a probationary period of 12 months from the date of the first instance judgment. The term of imprisonment is calculated from May 13, 2016. Defendant Kiet is assigned to the People's Committee of Ben Cau Town, Ben Cau District, Tay Ninh Province for supervision and education during the probationary period. In case defendant Kiet changes his place of residence, the provisions of Clause 1, Article 69 of the Law on Enforcement of Criminal Judgments shall apply. However, it was not until May 22, 2016 that the People's Committee of Ben Cau Town received the decision to execute the judgment and issued a decision to assign a supervisor to defendant Kiet. At this time, defendant Kiet had left the locality and gone elsewhere. After that, it took a lot of time and used various measures through contacting the defendant's family until June 3, 2016, the defendant returned to his hometown to present himself. Thus, in the period from May 13, 2016 to June 3, 2016, that is, exactly 1 month, the defendant