Discussion on criminal charges for drug crimes in Vietnam

In the case mentioned above, Nguyen Van A is a drug addict who invites other drug addicts B, C, and D to his house to hang out. A gives B 2 million VND to buy drugs for A, B, C, and D to use at A's house. The investigative agency and the Prosecutor's Office have determined that A and B have committed the crime. However, there are different viewpoints regarding the charges:

The first viewpoint states that, in this case, A, B, C, and D are all drug addicts. A's act of providing drugs to other drug addicts for illegal use falls under the provisions of point a, item 6.2 of Joint Circular 17/2007/TTLT-BCA-VKSNDTC-TANDTC-BTP dated December 24, 2007, guiding the application of certain provisions in Chapter XVIII on Drug Crimes of the Penal Code 1999 (referred to as Circular 17/2007 for short): "Drug addicts with drugs (regardless of the source of the drugs) providing drugs to other drug addicts for illegal use shall not be held criminally responsible for the offense of organizing illegal drug use, but may be held criminally responsible for the offense of illegal drug possession or illegal drug use depending on the circumstances."

According to Article 3 of Joint Circular 08/2015/TTLT-BCA-VKSNDTC-TANDTC-BTP dated November 14, 2015, amending and supplementing certain points of Circular 17/2007, the offense of "illegal drug use" has been abolished, and there is no longer a provision for this offense in the current Penal Code. Therefore, in this case, A and B commit the offense of "illegal drug possession."

However, according to the author, this viewpoint is not entirely appropriate because, according to the provisions of Article 249 of the current Penal Code and point 3.1 of Circular 17/2007, "illegal drug possession" is the act of illegally storing drugs anywhere (such as in a house, garden, buried underground, in a suitcase, hidden in clothing, worn on the body, etc.) without the purpose of buying, transporting, or producing illegal drugs.

In the mentioned case, the individuals purchased drugs (A gave money to B to buy) and used them immediately on the spot, without any intention of possession or actual possession. Therefore, it is not truly appropriate to determine that A and B have committed the offense of "illegal drug possession."

The second viewpoint states that A and B did not commit the offense of "illegal drug possession" because the elements of the crime were not fulfilled. A and B are not criminally liable for the offense of organizing illegal drug use according to the provisions of point a, item 6.2 of Circular 17/2007. Therefore, A and B are only administratively penalized for the act of illegal drug use.

If we understand and interpret point a, item 6.2, as stated above, it would lead to the situation where A and B are not criminally prosecuted because A and B are drug addicts. However, if A and B are not drug addicts, they would be criminally prosecuted for the offense of "organizing illegal drug use." Therefore, understanding and interpreting point a, item 6.2, as the above viewpoints are not appropriate.

The third viewpoint, also the author's viewpoint, is that we need to understand that the provision of point a, item 6.2, of Circular 17/2007 only applies in cases where the drugs used are already available at A's house (regardless of the source of the drugs).

This means that in the case where A has a quantity of drugs that can be purchased, given by others, found, and brought home to store, A then invites B, C, and D to come and use them together. At this point, if A, B, C, and D are drug addicts, then A and B commit the offense of "illegal drug possession"; but if one of them is not a drug addict, then A and B commit the offense of "organizing illegal drug use."

However, in the case of this trial, there were no drugs present at A's house before. A gave money to B to buy drugs for A, B, C, and D to use at their house. This case does not apply point a, item 6.2, as mentioned above, nor does it consider whether the individuals are drug addicts or not. The behavior of A and B fulfills the elements of the offense of "organizing illegal drug use" as stipulated in point b, item 6.1 of Circular 17/2007.

Based on the fact that the law defines the offense as "illegal drug possession" for point a, item 6.2 of Circular 17/2007, and "organizing illegal drug use" for point b, item 6.1, it is reasonable to conclude that A and B should be charged with the offense of "organizing illegal drug use" in this case.

Above is the author's research and views on determining crimes for drug crimes. We look forward to receiving many discussions and contributions from other specialing in the same field./.

THANH THINH (Navy Regional Military Court)

Source: "Tạp chí Tòa án" (Court Magazine)

Key word: crimes | drug crimes | in Vietnam | Vietnam | drug addict |

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