How long is probationary period when sentenced to 2 years and 6 months in prison but served a suspended sentence in Vietnam?

How long is probationary period when sentenced to 2 years and 6 months in prison but served a suspended sentence in Vietnam?

Please advise me in this case. An offender was sentenced by the Court to 2 years and 6 months in prison, but considered eligible for a suspended sentence. Therefore, the Court granted a suspended sentence and fixed the probation period to 5 years. Is this trial period legal? Which document stipulates? Thank you.

Reply:

Pursuant to Clause 1, Article 65 of the 2015 Penal Code:

1. Where a person is sentenced to imprisonment of up to 03 years, in consideration of the offender's records and mitigating factors, the Court might give a suspended sentence with a probation period of 1 - 5 years and request the convict to fulfill certain obligations during this period in accordance with the Law on criminal sentence execution if imprisonment is deem unnecessary.

According to this regulation in Vietnam, the probation period when serving a suspended sentence is from 1 year to 5 years.

Besides, Article 4 of Resolution 02/2018/NQ-HDTP also stipulates:

When allowing offenders to enjoy suspended sentences, the Court must fix the probation period equal to twice the prison sentence, but not less than 01 year and not more than 05 years.

As a rule, the probationary period will be equal to twice the prison sentence but must not be less than 01 year and not more than 05 years in Vietnam.

According to the information you provided, if this person is sentenced to 2 years and 6 months in prison (ie 2.5 years in prison) and enjoys a suspended sentence, the probation period is 2.5 x 2 = 5 years of probation.

Thus, in this case, the Court fixed the probation period of 5 years as prescribed in Vietnam.

Is it possible to receive a suspended sentence when there is accusation for robbery under Clause 2 in Vietnam?

My brother played billiards with his friend, then had a back and forth conflict, pushed the other friend to fall, then my brother hooked his hand in his pocket to take money and then left and was prosecuted for robbery in clause 2.

So I would like to ask my brother if he is entitled to a suspended sentence or not, the victim asked for a reduction of the crime, committed the crime for the first time and repented and the family compensated for the damage.

Reply: 

Article 168 of the 2015 Penal Code provides for the crime of property robbery as follows:

1. Any person who uses violence, threat of immediate violence or commits other acts that render another person unable to resist in other to obtain his/her property shall face a penalty of 03 - 10 years' imprisonment.

2. This offence committed in any of the following circumstances carries a penalty of 07 - 15 years' imprisonment:

a) The offence is committed by an organized group;

b) The offence is committed in a professional manner;

c) The offence causes 11% - 30% WPI for the victim;

d) The offender uses a dangerous weapon, device or other dangerous methods to commit the offence;

dd) The property taken is assessed at from VND 50,000,000 to under VND 200,000,000;

e) The offence is committed against a person under 16, a woman whose pregnancy is known by the offender, an old and weak, sick or defenseless person.

g) The offence has a negative impact on social safety, order and security;

h) Dangerous recidivism.

3. This offence committed in any of the following circumstances carries a penalty of 12 - 20 years' imprisonment:

a) The property taken is assessed at from VND 200,000,000 to under VND 500,000,000;

b) The offence causes 31% - 60% WPI for the victim;

c) The offender takes advantage of a natural disaster or epidemic to commit the offence.

4. This offence committed in any of the following circumstances carries a penalty of 18 - 20 years' imprisonment or life imprisonment:

a) The property taken is assessed at ≥ VND 500,000,000;

b) The offence results in bodily harm of 01 person who suffers from ≥ 61% WPI or bodily harm of 02 or more people, each of whom suffers from ≥ 31% WPI of 02 or more victims;

c) The offence results in the death of the victim;

d) The offender takes advantage of a war or state of emergency to commit the offence.

5. Any person who makes preparation for the commission of this offence shall face a penalty of 01 - 05 years' imprisonment.

6. The offender may also be liable to a fine of from VND 10,000,000 to VND 100,000,000 , be put under mandatory supervision, prohibited from residence for 01 - 05 years or have all or part of his/her property confiscated.

Pursuant to Clause 1, Article 65 of the 2015 Penal Code:

1. Where a person is sentenced to imprisonment of up to 03 years, in consideration of the offender's records and mitigating factors, the Court might give a suspended sentence with a probation period of 1 - 5 years and request the convict to fulfill certain obligations during this period in accordance with the Law on criminal sentence execution if imprisonment is deem unnecessary.

Thus, if your friend is punished by the Court under Clause 2, he will be sentenced to imprisonment from 07 to 15 years, at this time will not be eligible for a suspended sentence.

If your friend is sentenced to 3 years in prison and meets the conditions for a suspended sentence, if it deems that there is no need to force him to serve the prison sentence, the Court shall grant the suspended sentence and set a probationary period of 01 year to up to 5 years in Vietnam.

Are there suspended sentences for infringement upon freedom of the press in Vietnam? 

Hello Lawyer, I am the former head of the Forest Protection Department. During my tenure, there were some mistakes in watershed forest management, this incident was discovered by some reporters and came to work. Working with me, I instructed the rangers to deliberately cause trouble and I directly threatened the reporters that if these people dared to disclose I would send them to jail, but I did not expect the words I said I was recorded by a reporter and accused the police of infringement upon freedom of the press, can you tell me if my case is suspended?

Reply:

Pursuant to Clause 1, Article 167 of the 2015 Penal Code, any person who uses of violence, threatens to use violence or otherwise obstructs a citizen from exercising his/her freedom of speech, freedom of the press, right of access to information or right to protest despite the fact that he/she has incurred disciplinary or administrative penalty for the same offence shall face a penalty of up to 02 year's community sentence or 03 - 24 months' imprisonment.

On the other hand, based on Article 2 of Resolution 02/2018/NQ-HDTP as amended by Clause 1, Article 1 of Resolution 01/2022/NQ-HDTP, there are provisions on conditions for persons sentenced to imprisonment to enjoy suspended sentences as follows:

A person sentenced to prison may be considered for a suspended sentence when fully meeting the following conditions:

1. Being sentenced to imprisonment for not more than 03 years.

2. The person sentenced to prison has the identity that, in addition to this crime, the offender abides by the policies and laws and fully fulfills the obligations of citizens in the place of residence or work.

a) For a person who has been convicted but is considered to have no criminal record, who has been convicted but whose criminal record has been expunged, who has been administratively sanctioned or disciplined, taking into account the following: If the date of this offense has passed the time limit, it will be considered as having not yet been administratively sanctioned or disciplined in accordance with law if it is considered that the nature and seriousness of the new crime is committed in the school. In less serious cases or the offender is an accomplice who plays an insignificant role in the case and meets other conditions, a suspended sentence may also be served;

b) For convicts who, when determining crime, have used the circumstances of "having been disciplined" or "have been administratively sanctioned" or "have been sentenced" and have met other conditions may also be given a suspended sentence;

c) For convicts whose cases are separated for settlement in different stages (separated into many cases) and meet other conditions, they may also enjoy suspended sentences.

3. There are 02 or more extenuating circumstances, including at least 01 extenuating circumstance specified in Clause 1, Article 51 of the Penal Code and no aggravating circumstances specified in Clause 1, Article 52 of the Penal Code.

In case there are aggravating circumstances for penal liability, the number of extenuating circumstances of penal liability must be greater than the number of aggravating circumstances of penal liability by 02 or more, including at least 01 extenuating circumstance specified in Clause 1, Article 51 of the Penal Code.

4. Having a clear place of residence or a stable place of work for competent agencies and organizations to supervise and educate.

A place of obvious residence is a place of temporary or permanent residence with an address specifically determined in accordance with the Law on Residence where a person serving a suspended sentence returns to reside and live regularly after serving the suspended sentence.

A stable workplace is a place where the offender works for a term of one year or more under a labor contract or under a decision of a competent agency or organization.

5. Considering that there is no need to force the execution of prison sentences if the offenders are capable of self-improvement and the suspension of sentences does not pose a danger to society; not adversely affect security, social order and safety.

6. When considering and deciding to grant the defendant a suspended sentence, the Court must carefully and closely consider the conditions to ensure that the suspension of the sentence is in accordance with the provisions of the law, especially for cases where the instructions are given in Clauses 2, 4 and 5, Article 3 of this Resolution

Thus, based on the provisions of the law in Vietnam, in this case, if you meet the above conditions, you will be entitled to a suspended sentence for your crime.

Above is the content of our advice on the issue that you have questions about.

Best regards!