The level of imprisonment for a criminal who is entitled to a suspended sentence is essentially based on the nature and level of danger of the crime, the personality of the criminal and the aggravating and mitigating circumstances (these are the bases for deciding on the punishment for the criminal). According to the provisions of the current Penal Code, only those who are sentenced to imprisonment for no more than three years can be considered by the Trial Council for a suspended sentence or not? This basis is a provision on the limitation of the scope of application of the suspended sentence measure. The law does not stipulate the type of crime, so in general, a person sentenced to imprisonment for no more than three years for any crime can be considered for a suspended sentence if there are sufficient other grounds. That is, for all types of crimes, the prison sentence that the Court applies to the criminal is within the limit of no more than 3 years. This is a prerequisite condition that serves as the basis for considering other conditions. Where the offender does not satisfy this condition, the Court does not need to assess further conditions to consider granting a suspended sentence.
In addition, Resolution No. 02/2018/NQ-HDTP added 06 cases that are not eligible for suspended sentences, demonstrating the strictness of the law and the leniency of criminal law policies towards criminals and offenders; severely punishing masterminds, leaders, commanders, stubborn opponents, thugs, using cunning tricks, professional nature, taking advantage of positions and powers for personal gain, intentionally causing particularly serious consequences...[15]
In addition, the law only stipulates the maximum penalty for a suspended sentence, not the minimum. However, according to Article 38 of the Penal Code, the minimum penalty for a suspended sentence is 3 months in prison.
But according to the author, it should be stipulated that: offenders are given suspended sentences for cases of less serious crimes or serious crimes but in less serious cases with a prison sentence of no more than three years. For offenders who are tried in court at one time for multiple crimes or have multiple sentences, when the sentences are combined,
If the total sentence does not exceed three years in prison, it may also be suspended, but the Trial Panel must consider it very carefully. When deciding on the level of imprisonment, the following mistakes must be avoided: a) Because the Trial Panel had intended in advance to give the convicted person a suspended sentence, it was correct to sentence them to a sentence of more than three years in prison, but it decided to sentence them to three years or less in order to make them eligible for a suspended sentence. b) Because the Trial Panel had intended in advance not to give the convicted person a suspended sentence, it was correct to sentence them to a low prison sentence, but it decided to give them a high prison sentence and did not make them eligible for a suspended sentence.
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Second: About the criminal's identity
A person who is granted a suspended sentence must certainly have a good personal history. The personal characteristics of the offender are an important basis for the Court to decide on the sentence and are also a necessary basis for the Court to consider whether the offender is capable of self-education and reformation or not, in order to decide whether to grant the offender a suspended sentence or not? The offender is considered to have a good personal history if, apart from the crime for which he is being tried for a suspended sentence, he has always complied with the policies and laws of the Party and the State and fully performed the obligations of a citizen in his place of residence and workplace. For a convicted offender who is considered to have no criminal record or a convicted offender who has been convicted by the Court but has had his criminal record expunged, an offender who has been administratively sanctioned or disciplined by a competent authority and the time considered to have not been administratively sanctioned as of the date of the current crime has exceeded the 6-month period, if the Trial Panel considers that the nature and extent of the new crime committed by the offender is less serious or the offender is an accomplice but an accomplice with an insignificant role in the case and meets all other conditions as prescribed, the Trial Panel may also consider granting a suspended sentence but must be very cautious.
In addition to having a good character, to be eligible for a suspended sentence, the convicted person must not fall into one of the cases specified in Article 3 of Resolution No. 02/2018/NQ-HDTP. This provision has very decisively demonstrated the principle of strict punishment in Vietnamese criminal law. [15]
When considering the personal circumstances of the offender, the Judicial Council needs to consider all personal factors comprehensively. In addition, it is necessary to simultaneously combine the offender's attitude after committing the crime with the general crime prevention requirements in the locality to evaluate and consider whether it is necessary to force them to serve a prison sentence or not. Offenders with good personal circumstances who are first-time offenders of less serious crimes, who after committing the crime have an attitude of repentance and honestly confess their guilt, are more likely to reform themselves than other subjects, so the Judicial Council should consider granting them a suspended sentence.
Third: On mitigating circumstances of criminal liability
A person who is entitled to a suspended sentence must have 02 or more mitigating circumstances, including at least 01 mitigating circumstance as prescribed in Clause 1, Article 51 of the current Penal Code and no aggravating circumstances as prescribed in Clause 1, Article 52. In case there are aggravating circumstances, the number of mitigating circumstances must be greater than the number of aggravating circumstances as prescribed in Clause 1, Article 51 of the Penal Code. The provisions of Resolution No. 02/2018/NQ-HDTP have demonstrated the leniency of the criminal policy towards offenders. If there are aggravating circumstances, the number of mitigating circumstances must be greater than 02 circumstances and only need to have at least 01 mitigating circumstance as prescribed in Clause 1, Article 51 of the current Penal Code. Because in some cases, the offender has only 01 aggravating circumstance but there are many mitigating circumstances according to Clause 1, Clause 2, Article 51 of the current Penal Code and considering the nature and extent of the crime is insignificant, they can still enjoy a suspended sentence despite having aggravating circumstances [28, p. 34
– 35]. This provision ensures both scientific and fair judgment in the Court's sentencing decisions.
Fourth, about the place of residence or place of work of the offender.
The offender who is decided by the Trial Council to be given a suspended sentence must have a clear place of residence (permanent or temporary) or a stable workplace for the competent agency or organization to monitor, supervise and educate. The clear place of residence of the offender is the place where he/she temporarily or permanently resides with an exact address specifically determined according to the provisions of the Law on Residence where the person enjoying a suspended sentence resides and lives regularly after being granted a suspended sentence by the Trial Council. The stable workplace must be the place where the offender works for a term of at least 01 year or more under a labor contract according to the provisions of the law on labor or according to the recruitment decision of the competent agency or organization. Because when granting a convicted person a suspended sentence, the content of the judgment must declare which agency or organization the person enjoying a suspended sentence is assigned to? Is it the place where the person works or the place where he/she resides for monitoring, supervision and education.
Fifth, it is deemed unnecessary to compulsorily serve a prison sentence.
This is a basis based entirely on the subjective assessment of the Judge and the Trial Panel. When considering granting a suspended sentence to a convicted person, the Trial Panel shall, based on the above-mentioned bases, consider, evaluate and decide on the ability of the person enjoying a suspended sentence to work and reform himself/herself under the supervision, monitoring and education of the agency or organization assigned to supervise and educate, as well as the family, relatives, friends of the convicted person and the social community where that person lives. In addition, the Trial Panel shall consider the requirements of the work of preventing and combating crime for each specific type of crime in each specific period, to see whether it is necessary to force the offender to serve a prison sentence or not. In case the convicted person has met all three of the above-mentioned bases according to the provisions of the Penal Code
However, due to the specific requirements of the local crime prevention and control work to promptly deter the type of crime they have committed, thereby educating and preventing this type of crime in the locality at the present time, for political purposes, the Trial Council may not give the convicted person a suspended sentence but force them to serve a prison sentence. On the contrary, if the Trial Council considers that the convicted person has a stable place of residence, is a person who is truly capable of working to reform himself to reform in a specific social community environment, and is not at risk of reoffending because the nature of the crime they committed is a less serious crime as well as the negative influences of surrounding subjects and the surrounding environment, then they will be given a suspended sentence.
1.2.2. Regulations on probation period of suspended sentence
The probation period is a mandatory condition for applying a suspended sentence. This is also a sufficient period of time for the convicted person to prove and affirm his or her willingness to reform himself or herself. On the other hand, it also helps the Court have the opportunity to check the correctness of applying a suspended sentence to the convicted person during the sentence.
According to the provisions of Clause 1, Article 65 of the 2015 Penal Code: "When sentencing a person to imprisonment for no more than three years, based on the personal circumstances of the offender and the mitigating circumstances of the criminal liability, if it is deemed unnecessary to force them to serve the prison sentence, the Trial Council may give the offender a suspended sentence and set a probation period for them from one to five years". Therefore, when deciding to give a person sentenced to imprisonment a suspended sentence, the criminal law stipulates that the Trial Council must also set a certain probation period for them from one to five years and clearly state it in the judgment. In addition, the probation period of the suspended sentence for the offender who is entitled to a suspended sentence is mandatory, it is not allowed to give a suspended sentence but exempt the probation period, there is a very close relationship between the probation period and the level of imprisonment and the impact of the sentence.
interact with each other, but this issue has not been specifically regulated by the Criminal Code. The probation period for them must not be less than one year and not more than five years, nor must it be less than the prison sentence [28, p. 45].
According to the provisions of Article 65 of the Penal Code, for those sentenced to imprisonment from 03 months to 03 years, the Court can set a probation period from 01 year to 05 years without being bound by the ratio of how many months, how many years of imprisonment, how many years of probation, the offender may only be sentenced to 03 months in prison but can be on probation for 05 years and vice versa. In order to overcome the above limitations, according to the guidance in Article 4 of Resolution No. 02/2018/NQ-HDTP, " When granting a suspended sentence to an offender, the Court must set a probation period equal to twice the prison sentence, but not less than 01 year and not more than 05 years ", this is a provision inherited from Resolution No. 01/2013/NQ-HDT dated November 6, 2013 of the Council of Judges of the Supreme People's Court. On the other hand, there is an opinion that a person sentenced to 1 year in prison but given a suspended sentence with a probation period of 2 years, they have been on probation for 1 year, meaning they have completed the prison sentence of the suspended sentence.
The application of a suspended sentence regime only has legal and practical significance when the Trial Council declares a reasonable probation period. That is a certain period of time sufficient to test the person on probation so that they can work to reform themselves to improve their lives. If during this time they do not commit new crimes and fully comply with their obligations as prescribed by law, it can be believed that they are no longer a danger to society and have little risk of reoffending. The probation period of a person on probation is determined mainly depending on the nature and level of danger of their criminal behavior, as shown in the level of imprisonment they must serve, as well as depending on the Trial Council's assessment of the offender's ability to self-educate and reform. A person on probation has served half of the probation period and has made a lot of progress, such as properly and fully complying with all the requirements.
regulations, policies and laws of the State, no signs of violating the law, during the process of studying, working in production or during the process of working, the person has made positive efforts, made meritorious deeds to atone for his/her crimes, shown a positive attitude of repentance, repented, wanted to make meritorious deeds to atone for his/her crimes or overcome and correct his/her mistakes to reform, then at the request of the agency or organization responsible for supervision and education, the Court may decide to shorten the probation period. In the case where the offender is given a suspended sentence by the Trial Council and commits a new crime during the probation period, the Court shall decide to force him/her to serve the sentence of the previous sentence and combine it with the sentence of the new sentence according to the provisions of Article 56 of the Penal Code (Clause 4, 5, Article 65 of the Penal Code 2015). Thus, according to the provisions of the law, the probation period of a suspended sentence is of great significance to the person enjoying a suspended sentence. A person serving a suspended sentence may have his/her probation period shortened by the Court if he/she behaves well during the probation period. The Court may consider reducing his/her probation period multiple times [28, p. 45].
1.2.3. Regulations on applying additional penalties when granting suspended sentences
According to the provisions of Clause 3, Article 65 of the 2015 Penal Code, a person serving a suspended sentence may be subject to additional penalties including a fine, a ban from holding a position, a ban from practicing a profession or doing certain jobs as prescribed in Articles 35 and 41 of the 2015 Penal Code. For crimes for which the Penal Code stipulates that additional penalties are mandatory along with the main penalty, in addition to the additional penalties prescribed in Clause 3, Article 65 of the 2015 Penal Code, the person serving a suspended sentence must also be subject to that mandatory additional penalty. For crimes for which the Penal Code stipulates that additional penalties may or may not be applied, in addition to the additional penalties prescribed in Clause 3, Article 65 of the 2015 Penal Code, the person serving a suspended sentence may be subject to additional penalties according to the provisions of the Penal Code on additional penalties for the crimes they have committed. In
In case the person enjoying a suspended sentence must serve an additional penalty in addition to the main penalty, the term of serving the additional penalty with a fixed term is calculated from the date of the first judgment for a suspended sentence with an additional penalty.
1.2.4. Regulations on shortening the probation period of suspended sentence
Clause 4, Article 65 of the 2015 Penal Code stipulates: “A person serving a suspended sentence has served half of the probation period and has made significant progress during the probation period. At the request of the agency or organization responsible for monitoring, supervising and educating, the Court may issue a decision to shorten the probation period.” A person serving a suspended sentence may have the competent People's Court decide to shorten the probation period of the suspended sentence when all of the following conditions are met: (1) The person has served half of the probation period of the suspended sentence;
(2) There has been much progress demonstrated by the fact that during the probation period, the person serving a suspended sentence has strictly complied with the law and obligations under the Law on Enforcement of Criminal Judgments... (3) The People's Committee at the commune level, the agency or organization assigned to supervise and educate the person serving a suspended sentence has requested in writing to shorten the probation period.
Each year, a person serving a suspended sentence can only be considered for a shortening of the probation period once from 01 month to 01 year and a person serving a suspended sentence can have their probation period shortened multiple times, but must ensure that the actual time they serve the probation period is three-quarters of the probation period for the probation period that the judgment has declared for them. There are other opinions that the above provisions on the conditions for shortening the probation period of a suspended sentence are not sufficient, such as in the case of not serving the additional penalty of a fine, the obligation to compensate for damages and court fees, but the probation period is shortened, which is unreasonable, and does not reflect the principle that the Court's judgment that has come into legal effect must be enforced [3, pp. 43 - 45].