What Are the Conditions for a Defendant to Receive a Suspended Sentence? When Must the Person with a Suspended Sentence Serve a Prison Sentence?
Conditions for the Accused to be Granted Suspended Sentence?
According to Article 2 Resolution 02/2018/NQ-HDTP amended and supplemented by Article 1 Resolution 01/2022/NQ-HDTP, the conditions for a person sentenced to imprisonment to be granted a suspended sentence are provided as follows:
Conditions for a Person Sentenced to Imprisonment to be Granted a Suspended Sentence
A person sentenced to imprisonment may be considered for a suspended sentence if they meet the following conditions:
1. Sentenced to imprisonment for no more than 3 years.
2. The sentenced person has good conduct; aside from the commission of the crime, the offender adheres to policies, laws, and fulfills all civic duties at their place of residence or workplace.
a) For those who have been convicted but are considered as having no criminal record, those who have their criminal records expunged, those who have been administratively penalized or disciplined, if by the time the new crime is committed, enough time has passed to be considered not administratively penalized or not disciplined according to law provisions, and the nature and degree of the new crime is of a less serious nature or the offender plays a minor role in the crime, and if other conditions are met, they may also be granted a suspended sentence;
b) For those who have been convicted and when determining the crime used the factors "having been disciplined" or "having been administratively penalized" or "having been convicted" and if other conditions are met, they may also be granted a suspended sentence;
c) For those convicted whose case has been split into different stages (split into multiple cases) and if other conditions are met, they may also be granted a suspended sentence.
3. Have at least 2 mitigating circumstances, including at least 1 mitigating circumstance prescribed in Clause 1, Article 51 of the Criminal Code and no aggravating circumstances prescribed in Clause 1, Article 52 of the Criminal Code.
In cases where there are aggravating circumstances, the number of mitigating circumstances must exceed the number of aggravating circumstances by at least 2, including at least 1 mitigating circumstance prescribed in Clause 1, Article 51 of the Criminal Code.
4. Have a clear place of residence or a stable workplace for competent authorities to supervise and educate.
A clear place of residence is a temporary or permanent residence with a specific address as prescribed by the Law on Residence where the person granted a suspended sentence will reside and live regularly after being granted the suspended sentence.
A stable workplace is a place where the offender works for at least 1 year under a labor contract or a decision of the competent authority or organization.
5. It is deemed unnecessary to enforce an imprisonment sentence if the offender is capable of self-reformation and granting them a suspended sentence does not pose a danger to society; does not adversely affect public security, order, or safety.
6. When considering and deciding to grant a suspended sentence, the Court must carefully and stringently examine the conditions to ensure that the granting of a suspended sentence conforms to the law, especially in cases guided in Clause 2, Clause 4, and Clause 5 of Article 3 of this Resolution.
The accused must meet all the conditions as prescribed to be granted a suspended sentence.
Conditions for the Accused to be Granted Suspended Sentence and When a Person Granted Suspended Sentence Must Serve the Imprisonment Sentence? (Image from the Internet)
When Must a Person Granted Suspended Sentence Serve the Imprisonment Sentence?
A person granted a suspended sentence must serve the imprisonment sentence if they fall into the cases specified in Article 10 of Resolution 02/2018/NQ-HDTP, amended by Clause 5, Article 1 of Resolution 01/2022/NQ-HDTP, including:
- The person granted the suspended sentence may be compelled by the Court to serve the imprisonment sentence if, during the probation period, they intentionally violate the obligations prescribed in Article 87 of the Law on Enforcement of Criminal Judgments from 2 times or more.
- Violations of obligations from 2 times or more for cases where the person granted the suspended sentence leaves the place of residence without permission are determined as follows:
+ During the probation period, the person granted the suspended sentence leaves the place of residence without permission, and the competent authority, based on Articles 87, 91, and 92 of the Law on Enforcement of Criminal Judgments, records the violation in a minute, reminds for the first time, and summons this person to continue serving the sentence, but they are still absent as per the summons. Therefore, the competent authority organizes a review in absentia and records a minute of the review in absentia. This case is deemed the first violation of obligation.
+ Based on Article 93 of the Law on Enforcement of Criminal Judgments, the competent authority continues to summon the person granted the suspended sentence, but this person remains absent, leading to the second reminder minute. If the authority continues to summon the person granted the suspended sentence and they are still absent, it records a minute confirming the absence. This case is deemed the second violation of obligation.
Conditions for Shortening the Probation Period of a Suspended Sentence?
There are 3 cases in which the probation period of a suspended sentence may be shortened according to Clause 1, Article 8 of Resolution 02/2018/NQ-HDTP, specifically:
- Having served half of the probation period;
- Showing significant progress, demonstrated by strict adherence to laws, obligations under the Law on Enforcement of Criminal Judgments, active learning, labor, and error correction, or achieving accomplishments in production labor and protecting national security recognized by competent state authorities.
- Being recommended by the Commune People's Committee, the agency, or organization assigned to supervise and educate the person granted the suspended sentence, in writing, for a reduced probation period.
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