We also know in advance who the customers are, or in other words, they do not always have a relationship, but they operate in a sporadic, mass way, in which they will accept to sell to anyone who buys. So it would be paradoxical if we only charge them with illegal drug trafficking when we find a specific buyer.
In order to best serve the purpose of determining crimes in a uniform and effective manner nationwide, competent authorities need to promptly find solutions to resolve the above-mentioned problems.
- Aggravating circumstances “Committing the crime twice or more” and “Against two or more people”:
The above situation has caused many debates and streams of thought in trial practice.
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For example: Ly Thuy H sold a quantity of heroin for 1.9 million to Hoang Thanh G on February 1, 2020. H once again sold the quantity of heroin for 2.9 million to Do Thanh P the next day. On February 3, 2020, H sold 1 gram of synthetic drugs to Le Thanh T and received 4.8 million VND when he was arrested by the police.
Afterwards, H was prosecuted under the provisions of Clause 2, Article 251 of the 2015 Penal Code (amended and supplemented in 2017). Regarding the above case, there are currently two opinions:
First opinion: Subject H must be prosecuted according to the provisions of Points b and c, Clause 2, Article 251, because this subject has illegally sold drugs 3 times to 3 subjects G, P and T.
Second opinion: Each time H committed a crime, it was only against one different person, and there was a long period of time between each crime. Therefore, it is reasonable to only prosecute A according to the provisions of Point b, Clause 2, Article 251.
The 2015 Penal Code has made important progress compared to the 1999 Penal Code in not only stopping at the circumstance of committing a crime multiple times, but it also fills in the loopholes.
legal with the addition of criminal circumstances for two or more people. Because trial practice shows that, with the 1999 law, in some cases, the criminal is only considered to have committed a crime once even though he has conducted transactions with two different subjects at the same time.
For the above reasons, the student's opinion will lean towards the direction of handling subject H according to the provisions of Point b, Clause 2, Article 251, the crime circumstance of committing the crime twice or more. Regarding the issue of the number of buyers exceeding two, the student believes that it has been handled as included in the crime circumstance of committing the crime many times, and should not be separated from this circumstance to be handled separately.
However, for any controversial issue, there will still be agreement and disagreement among individuals. It is thought that the competent authorities should soon issue instructions to clarify the above issue.
- The problem of drug content assessment:
Clause 2, Article 1 of Joint Circular No. 08/2015/TTLT-BCA-VKSNDTC-TANDTC-BTP stipulates that content assessment is only required in the following cases:
a, Drugs and precursors used in the production of drugs in solid form are dissolved into solutions;
b, Diluted liquid narcotics and precursors used in the production of narcotics;
c, Opium;
d, Addictive drugs, psychotropic drugs.
In addition to the above cases, this Joint Circular also stipulates that if there is a basis and it is deemed necessary, the Court has the right to directly request an appraisal.
However, there are still some remaining problems:
+ When examining the criminal's evidence, the police found that this was a type of drug that was deliberately processed to penetrate plants.
Grassy plants and then dried. This new type of drug causes many difficulties for the appraisal work because of its novelty. In addition, the current law also does not have a mandatory regulation to appraise the content of this new form of drug to find the amount of crystallized drugs. The question is whether the weight of both the plant and the drug inside should be taken as the amount of crystallized drugs or not?
+ In the case where the evidence is part of a plant (highly likely to be an addictive plant that has been announced by the Government), should it be appraised to find the exact name of the addictive substance or should it just stop at finding the scientific name and identifying the plant?
- Regarding the calculation of drug mass:
According to Decree No. 19/2018, it is mandatory to appraise if solid drugs are dissolved into liquid form. However, there is a problem here that the results are quantified in g/milliliter.
So the question is whether to prosecute based on the amount of solid drugs or the amount of dissolved crystal drugs?
2.2.2. Causes of limitations and difficulties
- Legal reasons
We have a full set of fundamental laws as a basis for investigation, prosecution and trial activities, but there is a great lack of sub-law documents to specify and guide the trial. This has been and is still going on, and there is still no draft or proposal announced to supplement these sub-law documents in the near future. This has caused inadequacies, with many places applying them in conflict as mentioned above. Overall, it affects the final trial results of district-level courts such as Tan Chau in particular, and other courts across the country in general.
- Professional reasons
+ The Investigation Police Agency, the Procuracy and the Court still lack close cooperation, the speed of handling cases through the stages is still slow, stagnant, and there are often fierce conflicts in the issue of resolving cases because, as mentioned above, there is currently a lack of sub-law documents guiding the direction of recognizing and handling cases. In addition, Tan Chau is also a border district, so training activities and improving professional expertise for the members participating in the trial are still very limited and lacking, causing the quality of the Court officials in the district, in general, not to be as excellent and outstanding as in large, centrally-run cities such as Hanoi, Ho Chi Minh City, Da Nang or Can Tho, etc.
+ The process of considering the seriousness of the case and the evidence is sometimes superficial, subjective and arbitrary. It is not uncommon for the police to decide to prosecute even though the level of evidence is not convincing enough, and only when the parties involved speak up and point out the unconvincing points will the case be suspended. At the individual level, some judges do not have a deep enough view of the consequences of drugs on people around them, so the trial is still subjective, the choice of punishment is not appropriate to the nature and level of the case, causing those who are still illegally buying and selling drugs in society to not feel afraid or worried about their behavior, weakening the educational function of the law.
+ Some court officials, regardless of whether they are Secretaries or Judges, still have many difficulties in using the computer network and looking up the latest legal information.
+ People's jurors lack experience in sitting in court, lack the ability to analyze case details, and a small number of them invest little brainpower and effort in their work, thinking that judges are more experienced than they are.
should consider the decision of the Chief Judge as one's own decision without considering or reviewing the details and circumstances of each case.
- Reasons for the coordination of activities between prosecution agencies
It is not uncommon for the coordination of activities between parties involved in the proceedings to encounter obstacles or to work in disharmony in localities across the country, and the People's Court of Tan Chau district, Tay Ninh province, has not encountered many similar problems. The trouble may come from the investigation stage of the police or the stage of the Procuracy, which makes it difficult for the smooth, seamless and quick trial activities. In the context of the increasing number of cases, the coordination and rhythm in the proceedings should be paid attention to, paid attention to and promoted, avoiding the situation where each party has a different opinion, having to continuously return files, consult opinions, causing delays in the trial of criminal cases in general, and drug cases in particular, of the Court.
- Organizational reasons
The work of organizing civil servants still has many shortcomings, when the shortage of Secretaries is extremely serious and there is still no source of additional human resources. A Secretary has to work for two to three Judges, causing heavy mental pressure. Meanwhile, some Judges, in addition to adjudicating, also have to take on the role of Union Chairman or other positions related to Party activities, which also has a very heavy work schedule, making it impossible for them to fully devote themselves to their main professional work of adjudication. Such shortcomings in the work of organizing cadres need to be jointly resolved, not only by the Tan Chau District People's Court itself but also by the Tay Ninh Provincial People's Court and the Central levels, because the students believe that this situation is not only faced by the Tan Chau District People's Court.
CHAPTER 2 SUMMARY
Chapter 2 has presented the data on the Crime of illegal drug trafficking in the period of 2016 - 2020, specific data for each year, the increase and decrease over the years; especially the results achieved; typical cases and the shortcomings and limitations encountered; the causes of those shortcomings and limitations. It can be seen that the problems in the trial of cases of illegal drug trafficking that Tan Chau encountered are both specific to this locality and have common points compared to other border districts across the country. From that reality, it paves the way for the author's proposals and recommendations to improve the application of the law and perfect the law on the Crime of illegal drug trafficking in the following chapter.
Chapter 3
SOME SOLUTIONS TO IMPROVE THE LAW AND IMPROVE THE EFFECTIVENESS OF TRIAL OF CRIMES OF ILLEGAL DRUG TRAFFICKING IN TAN CHAU DISTRICT, TAY NINH PROVINCE
3.1. Perfecting legal regulations on the crime of illegal drug trafficking
In the process of studying the verdicts, considering the circumstances related to the crime of illegal drug trafficking as prescribed in Article 251 of the 2015 Penal Code (amended and supplemented in 2017) from the practice of Tan Chau district, Tay Ninh province, in order to further improve the law, the student would like to propose his own views as follows:
- Add the concept of drug crime
The 2015 Penal Code currently lacks a clear conceptual category of what a drug crime is. From practice, it can be seen that there is an urgent need for a clear concept. Students would like to propose the following: “Drug crimes are acts that violate the unified state management regime of addictive substances and psychotropic substances as well as in the illegal cultivation, production, storage, transportation, and trading of drugs and other acts”.
- About the crime
+ First : Section 1.4 Part I of Circular 17 stipulates:
“1.4. If the substance being examined is not a drug or a precursor used in the illegal production of drugs, but the person committing the act is aware that the substance is a drug or a precursor used in the illegal production of drugs, then depending on the specific crime, that person will be prosecuted for criminal liability according to the crime specified in Clause 1 of the corresponding article for drug-related crimes.
If the substance is determined not to be a drug, but the subject thinks it is a drug and sells it, he still violates Clause 1, Article 251 of the 2015 Penal Code (amended and supplemented in 2017), of the crime of illegal drug trafficking.” [4]
We can interpret it as follows: although it is not actually drugs, the person who committed the act is determined to carry out the transaction to the end, directly violating the State's monopoly management of addictive substances, so he will be charged with the crime under Article 251. This raises a problem: a subject can take advantage of the legal loophole in the difference in drug quantity to maximize the amount of drugs bought and sold but still only be charged under Clause 1, Article 251, specifically, if a subject "mistakenly" buys and sells 750g of drugs and another subject also "mistakenly" buys and sells only 6g, they will both have to bear equal legal responsibility. This is a serious legal loophole that needs to be amended to avoid profiteering, exploitation and also causes unfairness in the final judgment of the Court.
+ Second : The previous criminal law stipulated 4 crimes at the same time in Article 194 of the 1999 Penal Code. Therefore, based on Joint Circular No. 17 dated December 24, 2007:
“In case a person commits many criminal acts as prescribed in Article 194 (or Article 195 or Article 196) of the Penal Code, and those acts are closely related to each other (this criminal act is a condition for committing or is an inevitable consequence of the other criminal act), he/she shall be prosecuted for criminal liability with full charges for all acts committed under the corresponding law and shall be subject to only one penalty.” [4]
For example: A subject who fully commits all three acts of buying, selling, storing, and transporting drugs will be subject to only one crime under Article 194 of the 1999 Penal Code. However, the current Penal Code has stipulated the separation of the above provisions.