THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT
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No. 01/2022/NQ-HDTP
THE SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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Hanoi, April 15, 2022
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RESOLUTION
Amending and supplementing a number of articles of the Resolution No. 02/2018/NQ-HDTP dated May 15, 2018, of the Judicial Council of the Supreme People’s Court, guiding the application of Articles 65 of the Penal Code regarding suspended sentence
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THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT
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Pursuant to the Law on Organization of People’s Courts dated November 24, 2014;
In order to properly and uniformly apply the provisions of Article 65 of Penal Code No. 100/2015/QH13, which has been amended and supplemented under Law No. 12/2017/QH14;
After reaching agreement with the Procurator General of the Supreme People’s Procuracy and the Minister of Justice,
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RESOLVES:
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Article 1. To amend and supplement a number of articles of the Resolution No. 02/2018/NQ-HDTP dated May 15, 2018, of the Judicial Council of the Supreme People’s Court, guiding the application of Articles 65 of the Penal Code regarding suspended sentence
1. To amend and supplement Article 2 as follows:
a) To amend and supplement Clause 2 Article 2 as follows:
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“2. A convict sentenced to imprisonment shall be regarded as having good personal records if, not taking into account the crime of which he/she is convicted, he/she observes state policies and laws and fulfilled all citizen obligations at his/her place of residence and workplace.
a) For a convict who is entitled to be regarded as having no previous conviction or has had his/her conviction expunged, or a person who has been administratively sanctioned or disciplined for whom the duration, upon to the expiration of which he/she may be regarded as having never been administratively sanctioned or disciplined as prescribed by law, has expired by the time he/she commits a new crime, if deeming that the new crime is less serious or that he/she played an insignificant role as an accomplice in the criminal case and fully satisfies other conditions, the court may also entitle him/her to suspended sentence.
b) In case of using the circumstance of “having been disciplined” or “having been administratively sanctioned” or “having been convicted” when determining crime for a convict and other conditions are fully satisfied, such convict may also be entitled to suspended sentence.
c) For a convict for whom the case is separated to settle in different phrases (separate cases) and fully satisfies other conditions, the court may also entitle him/her to suspended sentence.”
b) To add Clause 6 Article 2 as follows:
“6. When considering and deciding on entitling a convict to suspended sentence, the court must carefully and strictly consider conditions for the proper imposition of suspended sentence as prescribed by law, especially for the cases guided in Clauses 2, 4 and 5 Article 3 of this Resolution”.
2. To amend and supplement Article 3 as follows:
a) To amend and supplement Clause 2 Article 3 as follows:
“2. Persons who have committed criminal acts and later absconded and are wanted under warrants by proceeding-conducting bodies, except for the cases of self-surrender before the decision on bringing the criminal case for trial is issued”.
b) To amend and supplement Clause 4 Article 3 as follows:
“4. Persons who are tried for more than one crime at a hearing, excluding:
a) Persons aged under 18 years; or
b) Persons who are tried and convicted for 2 less serious crimes, or persons who are helpers playing an insignificant role in a complicity case”.
c) To amend and supplement Clause 5 Article 3 as follows:
“5. Persons who have committed a crime twice or more, except for one of the following cases:
a) They are under 18 years old;
b) All the committed offenses are less serious ones;
c) In all committed offenses, the offenders are helpers playing an insignificant role in the complicity cases;
d) The offenders make confessions for all committed offenses”.
3. To add Article 4a after Article 4 as follows:
“Article 4a. Determination of the period of serving the imprisonment penalty of convicts who are entitled to suspended sentence and have been held in custody or detained
The time already in custody or detention of a convict who is entitled to suspended sentence shall not be included in the period of serving the imprisonment penalty to place the probation period. During his/her probation period, if such person commits new crime or violates his/her obligations and is coerced to serve the imprisonment sentence already suspended, the court may include the time already in custody or detention into the period of serving an imprisonment sentence already suspended or serving a new imprisonment sentence”.
4. To add Clause 9 to Article 5 as follows:
Tìm hiểu thêm: Nghị định 76/2019/NĐ-CP chính sách đối với cán bộ công chức công tác ở vùng kinh tế đặc biệt khó khăn
“9. In case the first-instance court entitles a convict suspended sentence but the appellate court quashes the first-instance judgments for re-investigation or re-trial and, through re-trial according to the first-instance procedures, the first-instance court upholds the ruling entitling the convict to suspended sentence, the probation period shall be counted from the date the latter first-instance judgment is pronounced.”
5. To amend and supplement Article 10 as follows:
“Article 10. In case a convict entitled to suspended sentence is forced to serve the imprisonment penalty of the judgment entitling him/her to suspended sentence due to his/her intentional breach of obligations
1. A convict entitled to suspended sentence may be forced by the court to serve the imprisonment penalty of the judgment that has entitled him/her to suspended sentence if he/she has intentionally breached his/her obligations prescribed in Article 87 of the Law on Execution of Criminal Judgments twice or more during the probation period.
2. Breach of obligations twice or more in case a convict entitled to suspended sentence leaves his/her place of residence without permission shall be determined as follows:
During the probation period, if a convicted entitled to suspended sentence leaves his/her place of residence without permission, the competent agency shall, based on Articles 87, 91 and 92 of the Law on Execution of Criminal Judgments, make a record of breaching obligations, make the first remind and summon him/her to continue executing judgments. In case such convict fails to be present in response to the summons, the competent agency shall organize a review of his/her absence and make a record of such absence. In this situation, such convict shall be regarded as violating his/her obligations for the first time.
Pursuant to Article 93 of the Law on Execution of Criminal Judgments, the competent agency shall continue summoning the convict entitled to suspended sentence. If he/she still fails to be present, the competent shall make the second reminder. The competent agency shall continue summoning the convict entitled to suspended sentence, if he/she still fails to be present, the absence confirmation shall be made. In this situation, such convict shall be regarded as violating his/her obligations for the second time”.
Article 2. To annul articles and forms attached to the Resolution No. 02/2018/NQ-HDTP dated May 15, 2018, of the Judicial Council of the Supreme People’s Court, guiding the application of Articles 65 of the Penal Code regarding suspended sentence
1. To annul Article 9.
2. To annul Form No. 01-HS attached to the Resolution No. 02/2018/NQ-HDTP dated May 15, 2018, of the Judicial Council of the Supreme People’s Court, guiding the application of Articles 65 of the Penal Code regarding suspended sentence.
Article 3. Effect
1. This Resolution was adopted by the Judicial Council of the Supreme People’s Court on March 23, 2022, and takes effect on May 10, 2022.
2. For criminal acts committed before the effective date of this Resolution and the case is undergone first-instance trial, appellate trial, cassation trial or reopening trial, this Resolution shall be applied for settling.
3. In case the offender has been tried before the effective date of this Resolution in accordance with previous guiding documents and judgments which have taken legal effect, this Resolution shall not be used as a basis for protesting according to cassation or reopening procedures.
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ON BEHALF OF THE JUDICIAL COUNCIL
CHIEF JUSTICE
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Nguyen Hoa Binh
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