But saying it is necessary can easily lead to inconsistent application of the law.
Clause 1, Article 60 sets the probation period from one to five years but does not specify the starting date of the probation period.
From the above analysis, in the author's opinion, so that everyone can easily understand and apply it correctly and consistently, it should be stipulated in the law as follows:
Suspended sentence is a measure of exemption from serving a prison sentence applied by the Court to a person sentenced to imprisonment of no more than three years, based on the offender's personal circumstances, with more mitigating circumstances than aggravating circumstances from two or more circumstances, based on the local security and order situation, the Court decides to grant a suspended sentence and sets a probation period of one to five years, from the date of sentencing .
According to the provisions of the 2010 Law on the Enforcement of Criminal Judgments as well as the most recent guidance of the Supreme People's Court's Judicial Council in Resolution No. 01/2013/NQ-HDTP of the Supreme People's Court's Judicial Council, during the probation period, the Court shall assign the person serving a suspended sentence to the commune-level authority where that person resides or the military unit where that person serves a suspended sentence for educational supervision. Meanwhile, Clause 2, Article 60 stipulates that during the probation period, the Court shall assign the person serving a suspended sentence to the agency or organization where that person works or the local authority where that person permanently resides for educational supervision. This provision is no longer consistent with current guidance documents.
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Regarding the implementation of supervision and education of people serving suspended sentences, in reality, many commune and ward authorities have been lax and almost indifferent to the management, supervision and education of people serving suspended sentences.
For convicted persons, when the Court has issued a Decision to execute the sentence and handed it over to the local authorities, but in reality they do not comply at all.
decisions on execution of sentences, non-compliance with management and educational measures of local authorities. This makes it difficult to monitor and educate people on suspended sentences in practice, offenders show contempt for the law, and people lose faith in the strictness of the law.
It is from the above shortcomings that, in the author's opinion, it is necessary to have stricter regulations on this regime in terms of violating the conditions of monitoring and managing the education of convicted persons during the probation period of suspended sentences. Through studying the actual situation as well as referring to the provisions on suspended sentences in the criminal law of some countries, it is necessary to amend in the following direction:
- If during the probationary period of a suspended sentence, despite repeated education and reminders, the person serving a suspended sentence does not comply with the regulations of management and education, the military unit or local authority where that person resides that is responsible for management and supervision should be allowed to request the Court where the convicted person has issued a decision to execute the sentence to consider a decision to impose a warning or to force an extension of the probationary period of the suspended sentence.
- In case a person serving a suspended sentence has had his probation period extended but still violates the law, at the request of the supervising and educational agency or organization, the Court may decide to cancel the suspended sentence and force the convicted person to serve the prison sentence in prison.
With the above general spirit, in the author's opinion, Clause 2, Article 60 of the Penal Code should be revised as follows:
2. During the probation period, the Court shall assign the person serving a suspended sentence to the People's Committee of the commune where he/she resides or the military unit where he/she works for supervision and education. The family of the convicted person shall be responsible for coordinating with the military unit and local authorities in supervising and educating that person. If that person violates the regulations on supervision and education, depending on the nature and severity, based on the request of the military unit
or the local authority where that person resides requests that the Court that issued the Decision on Execution of the Sentence may impose a warning; force the probation period to be extended by 1 year or Decide to enforce the prison sentence without allowing them to enjoy the suspended sentence anymore .
3.3. OTHER SOLUTIONS
From the research and analysis of the content of the suspended sentence system and the practice of applying suspended sentences in Hai Duong province, it is clear that there are limitations, difficulties and causes of these limitations and difficulties. To improve the effectiveness of applying suspended sentences in Hai Duong province, it is necessary to overcome these limitations and difficulties. In addition to solutions to improve the legal system and documents guiding the application of laws on suspended sentences nationwide, specifically in Hai Duong province, it is necessary to effectively implement the following measures.
3.3.1 Raising the sense of responsibility of those conducting the proceedings
As we all know, people are the central issue, the core that determines all success or failure in work. In order for the suspended sentence to bring about practical results with profound meaning, demonstrating the strictness of our State's laws and the humanity and humanity of current laws, it requires those conducting the proceedings to be truly impartial and objective, cautious when evaluating the case thoroughly, reasonably, and logically, in all relationships. That issue requires the responsibility of those conducting the proceedings, of those responsible for managing and educating those enjoying suspended sentences to be greatly enhanced. When talking about responsibility, we must distinguish the responsibility of those conducting the proceedings, of those responsible for managing and educating, specifically in the first stage of the proceedings, which is:
During the investigation, prosecution and trial stages
- For Investigators: They are very important people in the process of collecting initial evidence of criminal cases, to consider and evaluate the problem.
Whether the defendant's personal background is later eligible for a suspended sentence or not, during the investigation process, the investigator must be a person who is truly knowledgeable about the law, must be proficient in the profession, and during the investigation process, must pay attention to collecting in the most comprehensive and complete manner the four issues that need to be proven in a criminal case as prescribed in Article 63 of the Criminal Procedure Code, which are: whether a crime occurred or not, time, place and other circumstances of the crime; who committed the crime, was it at fault or not; was it intentional or unintentional; did he have criminal responsibility or not; purpose and motive for the crime; aggravating and mitigating circumstances of the suspect or defendant's responsibility and personal characteristics of the suspect or defendant; the nature and extent of damage caused by the crime. However, special attention must be paid to the issue of aggravating circumstances, mitigating circumstances of the criminal responsibility of the accused or personal and other legal responsibilities must be paid utmost attention and collected in the most complete way to avoid one-sidedness and carelessness, for example: When verifying the compensation details, it is necessary to find out who is the person compensating, whether the accused or defendant has any impact on the family or relatives to have any responsibility for compensation or not to apply the mitigating circumstances in point b or clause 2 of Article 46, or when verifying the personal issue, it is necessary to see whether the accused or defendant has a criminal record, whether he or she complies with the law in the locality, whether he or she has fully performed his or her civic duties such as paying taxes, fees and contributions, etc., whether his or her family, parents, brothers, sisters, or siblings are subjects of any policies, whether he or she is an elderly person, a pregnant woman, a person with limited cognitive ability, whether the accused has served in the military for a long time, whether he or she himself or herself. Have the defendant and his family been awarded medals by the State? With complete records, the verdict of the Trial Council granting the defendant a suspended sentence will truly convince the offender and still ensure the strictness of the law.
- For Prosecutors: Must do a good job of investigating and supervising the case, must go deep and closely follow the investigation progress, and guide the Investigators to collect information.
Collecting the most complete information about the case, about the issues as mentioned above for the Investigators, the Prosecutors only accept to make an indictment to prosecute in Court on the basis of a file that has been completed in terms of evidence, legal responsibilities have been disclosed, personal issues have been clarified, then later on the basis of such a file, the Prosecutors will have an accurate proposal for the Trial Council to consider and issue a completely accurate and legal verdict, so that the suspended sentence will have a general educational and preventive effect.
- For Judges and People's Assessors, they are the people of the Socialist Republic of Vietnam who make judgments and decisions to allow a person sentenced to imprisonment to receive a suspended sentence and declare other issues affecting the obligations and rights of the convicted person. Therefore, more than anyone else, Judges and People's Assessors must be the ones who have a deep and complete understanding of the suspended sentence regime, the nature and meaning of suspended sentences, and related issues. To achieve this, Judges and People's Jurors must constantly improve their knowledge, focus on research and study to improve their political qualities and legal level in general as well as master the legal regulations and guidance documents on suspended sentences in particular in each stage and period, at the same time carefully study the details of the case, the aggravating and mitigating circumstances of criminal responsibility, and pay attention to the local political situation to have an accurate judgment that the defendant is entitled to a suspended sentence in accordance with the provisions of the law, has the effect of educating criminals and serving the political tasks in the locality, only then will the suspended sentence truly be effective and have its practical meaning. Therefore, to improve the sense of responsibility and capacity of the team of Judges and People's Jurors in Hai Duong province, it is necessary to perform well the following tasks:
Firstly , the selection of Judges and election of People's Jurors of the People's Courts in Hai Duong province must ensure that the selected Judges and the elected People's Jurors must fully meet the standards prescribed by law.
Second , it is necessary to increase the opening of professional training courses, promptly supplement new knowledge, research topics on criminal law, criminal procedure in general and suspended sentences in particular for the team of Judges and People's Jurors.
Third , well organize the evaluation and use of the team of judges based on the level, quality and volume of completion of assigned tasks. At the same time, well organize the management of cadres, strengthen the inspection and internal examination of judicial agencies, annually evaluate the responsibility, moral qualities, capacity and qualifications of cadres with judicial titles to consider training, fostering cadres, assigning tasks or dismissing, promptly handling weak cadres and those who violate the law.
During the execution phase
For the Court: Must promptly make quick, concise decisions within the prescribed time limit such as: Decision to execute a suspended prison sentence, Decision to hand over a person sentenced to a suspended prison sentence to the military unit or local authority where the person sentenced resides, the judgment, the suspended sentence monitoring book, and must assign an officer to directly send to the military unit or local authority responsible for managing and supervising the person sentenced to full documents on the execution of the sentence so that these agencies can grasp it. It is necessary to stop sending these documents by post.
For the Procuracy: As the agency with the function of supervising judicial activities, it is necessary to further enhance its responsibility, to strengthen the inspection and supervision of the execution of suspended sentences, first of all, for the agency responsible for issuing the decision to execute the sentence, which is the People's Court at all levels. It is necessary to ensure that all judgments and convicted persons must be executed, the issuance of decisions must be in accordance with the law and must be directly assigned to the agencies, organizations, and local authorities (currently mostly assigned to the local authorities) where the convicted person resides with the responsibility to manage.
The educational authorities receive them to organize the implementation. The delivery of these decisions must be complete in accordance with the provisions of law such as: Decision to execute a suspended prison sentence, Decision to hand over a person sentenced to a suspended prison sentence to the military unit or local authority where the person sentenced resides, the judgment, the monitoring book of the person sentenced to a suspended sentence or non-custodial reform. Currently, there is still a situation where the Court hands over to local authorities via post, without guarantee or without procedures, such as in some cases, only the Decision to execute the sentence is delivered without delivering the judgment, or delivering the judgment but not delivering the Decision to hand over the convicted person to the authorities at all levels... For local authorities at all levels, they are not really interested in this work, so it requires the Prosecutors to strengthen the inspection and supervision of local authorities at all levels, the Procuracy should advise the People's Committee at the district level to organize conferences to draw common experiences throughout the area on the management and education of people sentenced to prison with suspended sentences to bring about higher efficiency.
For military units and local authorities directly managing and supervising people sentenced to suspended sentences during the probation period, they must first have a firm grasp of the legal provisions that allow them to do what they can in directly managing and educating criminals. They must really care, closely follow the work, regularly grasp and firmly manage those who must serve suspended sentences in their localities, agencies and organizations, and promptly make decisions to assign people to monitor and supervise them.
For those assigned to directly monitor and supervise criminals, it is necessary to understand the provisions of the law that stipulate what they must do and what the convicted person's obligations are so that they can fully perform their duties and responsibilities. They need to be close to and care for the convicted person regularly, regularly grasp their movements and promptly encourage and motivate them so that they can reduce their guilt complexes and reform themselves to become good citizens for society, and promptly report on their actions.
Advantages and disadvantages of the convicted person during the probation period to the person who made the decision to assign him to directly monitor and supervise.
3.3.2. Strengthening the work of guiding and explaining the law; inspection and supervision work of superiors and of People's Councils at all levels.
For central agencies, it is necessary to coordinate and issue inter-sectoral circulars to apply the law more fully and clearly on investigation, prosecution and trial activities so that the final result is that the implementation of the suspended sentence regime is the most understandable and clearest, and at the same time, it is necessary to guide and explain the law to the lower-level prosecution agencies to implement it in a unified manner. The instructions of the higher-level inter-sectoral agencies need to be initiated and unified right from the stage of investigating the case, the investigators must pay attention to fully collecting data on the conditions for later consideration of whether or not to allow the defendant to enjoy the suspended sentence regime. Thus, on the part of the investigation agency in general or the investigators in particular, it is necessary to truly understand and grasp the provisions of the law on the suspended sentence regime so that later the Trial Council, based on the investigation results in the case file, can make an accurate judgment when allowing a defendant to enjoy the suspended sentence regime. Recently, the Council of Judges of the Supreme People's Court has issued guidance in Resolution No. 01/2013/NQ-HDTP dated November 6, 2013, which stipulates in great detail the regime of suspended sentences. However, according to the author's assessment, this Resolution has not received real attention from the Investigation Agency, so it has affected the quality of case investigation, especially the investigation and verification of personal history is not really as profound as the spirit of the Resolution issued by the Council of Judges of the Supreme Court.
For the provincial and centrally-run city-level prosecution agencies, which are the direct superior agencies of the lower-level prosecution agencies, it is necessary to closely coordinate with the lower-level People's Councils to listen to public opinion reflecting on the issues of the Court's decisions.