Chapter 2
penalties and judicial measures applied
for minors who commit crimes according to the provisions of the 1999 Penal Code and its practical application in Hanoi
2.1. Penalties and judicial measures applied to minors who commit crimes according to the provisions of the 1999 Penal Code
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2.1.1. Penalties applicable to minors who commit crimes
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For the first time, Vietnamese lawmakers have recognized the concept of
Penalties in the 1999 Penal Code are as follows: " Penalties are the most severe coercive measures of the State to deprive or restrict the rights and interests of criminals " (Article 26) and the purpose of penalties:
Punishment is not only intended to punish criminals but also to educate them to become useful members of society, conscious of obeying the law and the rules of socialist life, and to prevent them from committing new crimes. Punishment is also intended to educate others to respect the law, to fight against and prevent crime [52, Article 27].
For juvenile offenders - subjects with their own psychological and physiological characteristics, the applied punishment must be less severe and the purpose of education and reformation when applying the punishment must be given top priority. The Penal Code has emphasized the principle of handling juvenile offenders mainly to educate and help them correct their mistakes, develop healthily, and become useful citizens for their families and society. On that basis, the system of punishment for them is also regulated in a more lenient direction than for adult offenders. In particular, additional punishments, life imprisonment, and the death penalty are not applied to offenders.
under the age of majority. Therefore, according to the provisions of Article 71 of the 1999 Penal Code, the penalties applied to minors who commit crimes include: Warning, fine, non-custodial reform and fixed-term imprisonment.
* Warning penalty
Regarding this penalty, the 1999 Penal Code does not provide a separate article applying a warning penalty to juvenile offenders. Thus, the form and content of this type of penalty when applied to juvenile offenders still follow the general provisions. Accordingly, Article 29 of the Penal Code stipulates: " Warning is applied to offenders who commit less serious crimes and have many mitigating circumstances, but not to the extent of exempting the penalty ."
Thus, the conditions for applying a warning penalty to a minor who commits a crime include:
One is , the person commits a less serious crime . This means that only a warning penalty is applied to a minor who commits a crime from the age of 16 to under 18, because a minor from 16 years of age or older must bear criminal responsibility for all crimes, while a person from 14 years of age or older but under 16 years of age must bear criminal responsibility for very serious intentional crimes or especially serious crimes;
Second , the offender has many mitigating circumstances, but not to the extent of being exempted from punishment . Mitigating circumstances of criminal responsibility include at least two circumstances and are stipulated in Clause 1, Article 46 of the Penal Code or in documents guiding the unified application of the law or are considered and decided by the Court itself but must clearly state the reasons in the judgment. However, the provision of the Code "but not to the extent of being exempted from punishment" easily leads to arbitrariness in application. In this regard, the fundamental difference between a warning penalty and exemption from punishment when a person commits a less serious crime and has many mitigating circumstances
It is precisely where those mitigating circumstances are stipulated - whether they are stipulated by the Code or not is up to the Court to decide. Furthermore, regarding the legal consequences, when exempted from punishment, the convicted person will naturally have his/her criminal record erased (Clause 1, Article 64), but with a warning penalty, this person must still serve the criminal record and carry the criminal record for a period of one year (Clause 2, Article 64 of the Penal Code).
As for juvenile offenders, in practice, this punishment is rarely applied due to the conditions, scope of crimes, and age at which this punishment can be applied as prescribed by the Penal Code.
* Fine
Fines applied to minors who commit crimes are stipulated in Article 72 of the Penal Code. Accordingly, a fine is when the Court forces the offender to pay a certain amount of money as prescribed by law to the State budget.
Fines are applied as the main punishment for juvenile offenders from 16 to under 18 years old. The regulation that fines are not applied to offenders from 14 to under 16 years old is reasonable because they are of school age and do not have any income or personal accounts. If criminal coercive measures of an economic nature are applied, it will cause a burden on their families, negatively affect the process of self-cultivation, training, and correction of mistakes, will not ensure the purpose of the punishment, and will not be feasible in practice.
Thus, the application of fines to juvenile offenders to affect their economic interests in order to educate them to become useful citizens for society without having to apply other measures still achieves the purpose of the penalty. However, the application of fines is only applied to cases of committing crimes whose main penalty is a fine, and the person must have his own income (including regular income).
The fine is determined according to the nature and seriousness of the crime, the property situation of the minor who committed the crime, and the fluctuation of prices, but the highest level shall not exceed half of the fine prescribed by that law and shall not be lower than one million VND. The fine may be paid in one or several installments within the time limit decided by the Court in the judgment and the parents of the minor who committed the crime shall not be forced to pay the fine on their behalf.
Thus, fines not only affect the consciousness and honor like a warning penalty but also deprive the offender of a part of his material benefits, thereby educating and reforming the offender, preventing them from committing new crimes and at the same time carrying out general prevention work. In particular, this provision was added to the 1999 Penal Code for juvenile offenders, expanding the possibility of not applying the penalty of deprivation of liberty to this group of subjects, as well as being consistent with current reality because in society, there are many juveniles who have their own income and property due to their talents, business activities, etc.
* Non-custodial reform
The penalty of non-custodial reform applied to minors who commit crimes is prescribed in Article 73 of the Penal Code.
Non-custodial reform is not forcing criminals to be isolated from society, they are still allowed to live with their families and society but are under the close supervision of agencies, organizations, and local authorities where they work or reside (Article 31 of the Penal Code). Accordingly, the regulation to apply non-custodial reform to juvenile offenders not only ensures its high feasibility, but also demonstrates the main purpose in handling juvenile offenders as mentioned, - to educate, help them correct their mistakes, develop healthily and become useful citizens for their families and for society, which is to create conditions
let them reintegrate into the community to reform themselves to become useful people in the future.
Non-custodial reform may only be applied to juvenile offenders when the following conditions are met:
Firstly , the crime committed by the minor is a less serious crime or a serious crime. Therefore, normally, the penalty of non-custodial reform is applied to offenders aged 16 to under 18, unless the Court decides on a lighter penalty according to the provisions of the Penal Code. Because, like the warning penalty, because minors aged 16 or older are criminally responsible for all crimes, while those aged 14 or older but under 16 are criminally responsible for very serious intentional crimes or especially serious crimes.
Second , the defendant (a minor) has a stable place of work and a clear place of residence. Although the Penal Code does not specify, normally, minors must have a clear place of residence, and perhaps very few people have a stable place of work, because they are at an age where their participation in work and labor is limited.
Third , the Court finds it unnecessary to isolate the offender from society while still achieving educational and preventive purposes.
The term of non-custodial reform for juvenile offenders shall not exceed half of the term prescribed by law for offenders in general, which means it is equivalent to one year and six months. Thus, compared to the 1985 Penal Code, the 1999 Penal Code has reduced the maximum penalty applicable to juvenile offenders from two years to one year and six months. In cases where a convicted person is detained or held in custody, the period of detention or temporary detention shall be deducted from the time of serving the non-custodial reform sentence, with one day of detention or temporary detention being equivalent to three days of reform.
non-custodial. The minimum period of non-custodial reform that the Court should take into account when deciding on a sentence is six months.
However, it should be noted that in the case of juvenile offenders, the issue of deducting 5% to 20% of income to be added to the State budget will not be raised by the Court when applying this penalty. The reason why our country's lawmakers have such a provision is because in reality, people who are minors do not have the obligation to participate in labor or participate but have insignificant income, most of them still have to depend on the family's economy. Therefore, if this person's income is deducted, it will be unfeasible and inevitably lead to the consequence of not achieving the purpose of the penalty.
* Fixed-term imprisonment
Fixed-term imprisonment is a punishment that forces a convicted person to serve his sentence in prison for a certain period of time. This is the most severe punishment in the system of punishments applied to juvenile offenders, because it deprives the convicted juvenile of his freedom for a certain period of time, forcing him to isolate himself from society, to work and study in prisons and reform camps under very strict detention and reform regimes.
When trying, in practice, the Court usually only applies this type of punishment in cases where a minor commits a serious, very serious or especially serious crime, has many circumstances that significantly increase criminal responsibility, has a bad personal history and a living environment that is not favorable for education and reform if the person is left in society, therefore:
First , for a person from 16 to under 18 years old when committing a crime, if the applicable law stipulates life imprisonment or the death penalty, the highest penalty applied shall not exceed 18 years in prison. If it is a fixed-term prison sentence, the highest penalty applied shall not exceed 3/4 of the prison term prescribed by the law.
Second , for persons between 14 and 16 years of age when committing a crime, if the applicable law prescribes life imprisonment or the death penalty, the highest penalty applied shall not exceed 12 years of imprisonment. If it is a fixed-term imprisonment, the highest penalty applied shall not exceed half of the prison term prescribed by that law.
In particular, Rule 19 of the Beijing Rules ( United Nations Common Minimum Rules for the Administration of Juvenile Justice ) also sets out the basic principle that: " Putting children in detention is a last resort and for the minimum necessary period ". We must base our decision on a report on the offender's living conditions, the circumstances of the crime and other factors to decide on the imposition of imprisonment on them. The court only imposes restrictions on personal freedom on juveniles who are tried for very serious or especially serious acts, using violence against others or stubbornly committing other serious acts that have no other solution.
In addition, the Rules also stipulate two combined conditions when applying imprisonment: First , never apply the penalty of deprivation of liberty for crimes that are not violent, serious or repeated with other serious crimes; second , although the crime is serious, if the circumstances of the crime and the nature of the offender show that rehabilitation will be successful without detention, the State and society have the responsibility to provide an appropriate solution to help the children reform well, not putting them at risk of loss or risk caused by the deprivation of liberty itself.
In addition, Article 308 of the 2003 Criminal Procedure Code also stipulates:
Juvenile offenders shall serve their prison sentences under separate detention regimes as prescribed by law. Juveniles shall not be detained together with adults. Convicted juveniles must receive vocational training or cultural education.
during the period of serving a prison sentence. If a minor serving a prison sentence has reached the age of 18, he or she must be transferred to adult detention [53].
Thus, the current Penal Code has relatively strict regulations and fully anticipates situations that occur in practice. However, in general, the application of these regulations to juvenile offenders is mainly for the purpose of educating and reforming juveniles, in accordance with the principle that " putting children in detention is the last resort and within the minimum necessary time " recognized by international law.
In 1889, for the first time in the world, the Juvenile Court model was formed (in Cook County, Illinois, USA) . The Juvenile Court was given jurisdiction over groups of children accused of committing crimes; groups of children who were victims of abuse; and groups of children who were no longer under the care of their parents due to their death, disability, or other reasons [95]. Later, this model was developed in a number of countries around the world. On January 28, 1952, the Central Juvenile Court was established in Thailand. Accordingly, children from 7 to 14 years old who commit crimes will also be tried and may be sentenced to prison, but the Court will decide on special measures by sending them to a reform school or sending them to a person or agency that the Court finds suitable for the reform and education of the children (Article 74). Minors between 14 and 17 years old can be punished and receive special punishments. In cases of this age, before trying and sentencing, the Court always carefully considers the circumstances, personality and environment of that person (Article 75) [57].
Or in the Netherlands, when a minor commits a crime, alternative sanctions are considered and applied, and are only allowed to proceed according to criminal proceedings when there is no longer any opportunity to apply alternative sanctions. Alternative sanctions applied to minors do not only replace the criminal penalty.