Violating the law but not to the extent of criminal prosecution and refusing to correct it. In cases where the violation is only minor, it should not be used as a basis for not allowing the criminal record to be erased.
1.2.3. Procedures for criminal record deletion
When fully meeting the conditions for criminal record deletion, the person whose criminal record is deleted must also follow certain procedures for criminal record deletion as prescribed by criminal law.
* For cases of natural criminal record deletion, the procedure is prescribed as follows:
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- When all the conditions specified in Articles 64 and 77 of the 1999 Penal Code are met, a convicted person will have his/her criminal record automatically erased, that is, he/she will be considered as having not been convicted. The court does not have to issue a certificate to all those whose criminal records are automatically erased, but only issues a certificate when those whose criminal records are erased request it.
- A person who wants to be granted a certificate of criminal record deletion must submit an application for criminal record deletion to the Court of First Instance. The application must be accompanied by the following documents:
a) Certificate from the police of the district, town, city or province where they are permanent residents that they have not committed any new crimes within the time prescribed by law to have their criminal record cleared.
b) In case of being warned, fined, reformed without detention, reformed in a military disciplinary unit, or imprisoned, depending on each case, there must be a release certificate after the prison term has expired; a certificate from the District, County, Town, City Public Security or the military disciplinary agency or unit where the convicted person has completed the non-custodial reform or reformed in a military unit; a court decision to reduce the time of serving the sentence.
If the convicted person is also subject to additional penalties, depending on the case, the following documents are required: Certificate from the People's Committee of the commune or ward where the convicted person has completed the probation or residence ban;
Receipt of fine payment…
c) If the judgment has a decision on compensation for damages, the convicted person must submit documents proving that compensation has been completed.
d) Receipt of court fee payment.
- The chief judge of the court signs the certificate of criminal record deletion and, if necessary, takes verification measures.
A certificate of criminal record clearance is issued to a person whose criminal record has been cleared and a copy is sent to the District, Town, City or Provincial Police and the People's Committee of the commune or ward where that person resides.
If the convicted person is found not to be eligible for criminal record expungement, the Chief Justice of the court shall notify that person.
- The person who is granted a certificate of criminal record deletion must pay a fee of
10,000 VND.
* In cases of criminal record deletion decided by the Court, the procedure is prescribed as follows:
- The deletion of criminal records decided by the Court is applied to the cases specified in Articles 65, 66 and 77 of the 1999 Penal Code. If a convicted person has many previous convictions, his/her criminal record will only be deleted when he/she has completed all sentences and must fully satisfy the conditions of not committing new crimes for all sentences.
- A person who wants to have his/her criminal record expunged must submit an application to the Court of First Instance and must include documents proving that he/she meets the conditions for having his/her criminal record expunged. He/she must also have a certificate from the Committee.
People of the commune or ward where they reside on their attitude towards compliance with policies, laws and their work attitude in the locality.
- The Chief Justice shall examine the conditions for the expungement of the criminal record and, if necessary, take verification measures. If the file is complete, the Chief Justice shall forward the file to the People's Procuracy at the same level so that the People's Procuracy may express its opinion on whether the convicted person is eligible for expungement of the criminal record. Within ten days from the date of receipt of the file, the Chief Prosecutor must express his opinion and return the file to the Court. The Chief Justice shall issue a decision to expunge the criminal record or reject the application for expungement of the criminal record. The decision to expunge the criminal record must be sent to the convicted person, the People's Procuracy at the same level, the Police of the district, county, town, or city under the province, and the People's Committee of the commune or ward where the person whose criminal record is expunged permanently resides. In case the application for expungement of the criminal record is rejected, the reasons must be clearly stated.
- The People's Procuracy has the right to appeal the decision to expunge a criminal record through the appellate procedure. If the decision of the Chief Justice has come into legal effect and is found to be erroneous, it can be appealed through the Chief Justice procedure.
- A person whose first application for criminal record expungement is rejected by the Court must wait one year before applying for criminal record expungement. If the application is rejected a second time, he/she must wait two years before applying for criminal record expungement again. For subsequent applications for criminal record expungement, the convicted person only needs to submit additional documents proving that he/she has corrected the previous shortcomings that prevented his/her criminal record from being expunged.
- A person applying for a criminal record expungement as decided by the Court must pay a fee of 10,000 VND when submitting the application for criminal record expungement.
* For cases of criminal record deletion when the statute of limitations for execution of judgment has expired and cases of inability to execute judgment on fines, compensation, and court fees:
a) Clearing criminal records in case the statute of limitations for execution of sentence has expired:
If the convicted person has not served his sentence and the statute of limitations for execution of the sentence as prescribed in Article 55 of the 1999 Penal Code has expired and he has not committed a new crime
Within the time specified in Articles 64, 65, 66, and Article 77, the criminal record shall be automatically erased or the criminal record shall be erased as decided by the Court. However, if they are only granted a temporary suspension of execution of the sentence or have evaded execution of the sentence, they shall not be entitled to the statute of limitations for execution of the sentence.
b) Clearing criminal records in cases of inability to comply with sentences regarding fines, compensation, and court fees:
In reality, there are some people who are only partially or completely unable to comply with sentences regarding fines, compensation, or court fees. Therefore, if they have not committed a new crime within the time limit prescribed by law, the Court can erase their criminal record if they have been temporarily suspended from serving those sentences and are now unable to comply with them. In these cases, the person requesting the erasure of their criminal record must request a certificate from the People's Committee of the commune, ward, or agency, enterprise, or cooperative where they are working that they are financially unable to comply with the sentence, and the erasure of their criminal record is resolved as follows:
- If the victim is a private individual and agrees not to claim compensation anymore, the Court shall issue a decision to erase the criminal record, confirming the victim's opinion that he/she will not claim compensation anymore; if the victim still claims compensation, the criminal record shall not be erased.
- If it is a fine, compensation or court fees that must be paid to the State, before deciding to erase the criminal record, the convict must be considered and decided to exempt from serving the fine, compensation or court fees if the judgment has been in legal effect for ten years. Only then will the criminal record be considered and decided to be erased. If that period has not expired, the criminal record will not be erased.
1.2.4. Political and legal significance of criminal record deletion
Stemming from the humanitarian nature and respect for human rights of criminal policy in general and of criminal record deletion in particular, criminal record deletion for
For a person convicted under a legally effective judgment of the Court, the political, social and legal significance is very important. This is shown as follows:
The deletion of criminal records for criminals has a high crime prevention effect, which is demonstrated by the regulation: "A person whose criminal record is deleted is considered to have not been convicted yet". Therefore, after being granted a certificate of criminal record deletion or after the Court issues a decision to delete the criminal record, the identification papers and judicial records issued to them must clearly state "not been convicted yet". A person whose criminal record has been deleted but later commits a new crime cannot be considered a recidivist or dangerous recidivist based on the previous criminal records that have been deleted. Through the regulation on criminal record deletion, it has contributed to motivating convicted people to actively reform, study, work and prevent them from committing new crimes so that they can quickly become honest people, useful to society. As for the family and relatives of the person whose criminal record is deleted, they will not be stigmatized as having a family member who has committed a crime.
In practice, if the Court correctly and accurately applies the provisions of the criminal record erasure system in practice, it will bring about a series of social benefits, namely strengthening the rule of law and consolidating legal order, firmly protecting human rights and freedoms; enhancing the prestige of the Court, and increasing the people's trust in the fairness and power of the law [22, p. 823].
Politically and legally: With the institution of criminal record deletion, on the one hand, it contributes to ensuring the consistent implementation of the principle of fairness, on the other hand, it reflects the principle of humanity and respect for human rights of criminal law. Because the law needs to prescribe sanctions to severely punish and deter criminals, but it cannot lack humanity; a society that wants to have fairness and humanity must be a society with a legal system for people; society cannot be stable and develop if the law is not for people, but if the law does not open the way for the convicted to reform, the law will be counterproductive [22, p. 823].
The above viewpoint of Associate Professor, Dr. Le Cam fully demonstrates the practical significance as well as the political and legal significance of criminal record deletion.
1.3. REMOVAL OF CRIMINAL RECORDS UNDER CRIMINAL LAW OF SOME COUNTRIES
In addition to studying the institution of criminal record deletion according to the provisions of Vietnamese criminal law, we also need to pay attention to considering and studying this institution according to the provisions of criminal law of some countries in the world. On the basis of this study, we can compare and contrast the provisions of our country's criminal law with the provisions of the criminal law of neighboring countries on this institution. Thereby, we can also see the inheritance and development of our country's criminal law compared to the criminal law of the countries mentioned in the study.
1.3.1. Expungement of criminal records according to the provisions of the Criminal Code of the Russian Federation (March 1, 1996)
According to the provisions of the Criminal Code of the Russian Federation in 1996, the regime of expungement of criminal records is stipulated in Article 87 - criminal records. Similar to the provisions of Vietnamese criminal law, when regulating expungement of criminal records, the lawmakers of the Russian Federation have not yet proposed a specific concept of criminal records as well as the concept of expungement of criminal records in the Criminal Code. Clause 1, Article 87 stipulates: "A person convicted of a crime is considered a convicted person from the date the verdict of conviction comes into legal effect until the conviction is expunged. According to the provisions of this Code, criminal records are calculated in cases of recidivism and when deciding on punishment" [2].
If according to the provisions of Clause 1, Article 64 of the 1999 Criminal Code, a person exempted from punishment is a person whose criminal record is automatically erased, then in Clause 2, Article 87 of the 1996 Criminal Code of the Russian Federation: "A person exempted from punishment is a person who has no criminal record". Basically, the provisions in this case in the two Criminal Codes have certain similarities. According to the general spirit of the law, a person exempted from punishment is a person who has no conviction and therefore has his criminal record automatically erased. However, in our opinion, although the legal consequences of these provisions are the same, the way the Criminal Code of the Russian Federation expresses it is more reasonable and accurate.
Unlike the 1999 Penal Code of Vietnam, the 1996 Penal Code of the Russian Federation stipulates only one general form of criminal record deletion, which is automatic criminal record deletion. Clause 3, Article 87 stipulates:
Criminal record cleared:
a, For people with suspended sentences - After the probation period has expired; b, For people convicted with lighter sentences than the probation period
freedom - After one year from the completion of the sentence;
c, For persons sentenced to restriction of liberty or imprisonment for less serious crimes or serious crimes - After two years from the date of completion of the sentence;
d, For persons sentenced to prison for very serious crimes - After four years from the date of completion of the sentence;
d, For persons sentenced to prison for particularly serious crimes - After six years from the date of completion of the sentence [2].
According to the above provision, it is basically similar to the provision in Clause 2, Article 64 of the 1999 Penal Code - Natural deletion of criminal records. If we compare the two provisions in the two Codes, we can see that, if the 1999 Penal Code of Vietnam stipulates that a convicted person will have his/her criminal record automatically deleted if he/she does not commit a crime specified in Chapter XI - Crimes against national security and Chapter XXIV - Crimes undermining peace, against humanity and war crimes of this Code, if from the time of completing the sentence or from the time of expiration of the statute of limitations for the execution of the sentence, that person does not commit a new crime within the period of 1, 3, 5 and 7 years, then the 1996 Penal Code of the Russian Federation stipulates the corresponding periods of 1, 2, 4 and 6 years. The provisions of the Criminal Code of the Russian Federation do not seem to distinguish between types of crimes, but rather they are provisions for all types of crimes in general and are based on the classification of crimes and punishments (less serious, serious, very serious and
especially serious). And also by the most common comparison, we also realize that the time limit for considering the deletion of criminal records after completing the sentence of conviction by the Court as prescribed in the 1999 Criminal Code is longer than that prescribed in the Criminal Code of the Russian Federation.
At the same time, based on the reality, Clause 4, Article 87 stipulates: "If the convicted person is exempted from serving the remaining sentence or the remaining sentence is replaced with a lighter sentence, then based on the actual sentence served, the sentence remission period is calculated from the time of exemption from serving the main sentence and additional sentences" [2].
This provision is very suitable for reality, because during the process of serving the sentence, due to objective reasons (illness, disease, etc.), the convicted person cannot continue to serve the sentence imposed by the Court, according to the provisions of law, they are exempted from serving the remaining sentence or have it replaced by a lighter sentence, so it is also necessary to stipulate the deletion of criminal records for this case. Unfortunately, the 1999 Penal Code of our country does not have any provisions for this case, although the Penal Code of our country took effect after the Penal Code of the Russian Federation.
Regarding the provisions on expungement of criminal records in special cases, both codes have similar provisions. However, there is also a difference in the term of sentence execution, that is, if the Penal Code of Vietnam stipulates that the term of sentence execution to be considered for expungement of criminal records before the term is one-third, then according to the provisions of the Penal Code of the Russian Federation, that term is one-half: "If after serving the sentence, the convicted person has made much progress and has good moral character, then at their request, the Court may expunge the conviction before the prescribed term, but not earlier than half of that term" [2].
In summary, through research, comparison and contrast between the provisions on criminal record deletion in the 1999 Vietnamese Penal Code and the 1996 Russian Penal Code, we see that the provisions on criminal record deletion in the two Codes are basically similar, both demonstrating the basic nature of the law.