10 questions about criminal matters and criminal procedure answered by the Supreme People's Court in Vietnam

10 questions about criminal matters and criminal procedure answered by the Supreme People's Court in Vietnam (Internet image)

On December 27, 2022, the Supreme People's Court issued Official Dispatch 206/TANDTC-PC, announcing the results of online answers to some problems in trial work.

10 criminal matters and criminal procedure problems are answered by the Supreme People's Court as follows:

1. 03 criminal problems answered by the Supreme People's Court

* Problem 1:

Is a person who is 18 years old and commits a crime but was previously convicted when he was under 16 years old a "first offender"?

=>According to the provisions of Point a, Clause 1, Article 107 of the Penal Code, convicted persons from 14 years old to under 16 years old are considered to have no criminal record. Therefore, in the case of a person who is 18 years old and commits a crime but was previously convicted when he was under 16 years old, he is considered a "first-time offender".

* Problem 2:

In case the evidence is part of an endangered, precious, or rare animal, how will the Court handle it?

According to Clause 1, Article 7, Resolution 05/2018/NQ-HDTP dated November 5, 2018 of the Council of Judges of the Supreme People's Court guiding the application of Article 234 regarding the Crime of violating regulations on protecting wild animals and Article 244 on Crime of violating regulations on protecting endangered, precious, and rare animals of the Penal Code:

"1. Handling of evidence that is wild animals, endangered, precious, rare animals, or their products is carried out as follows:

a) Exhibits that are wild animals, endangered, precious, or rare animals that are still alive must be handed over to a specialized management agency immediately after the assessment conclusion is reached to return them to the wild. Hand them over to rescue centers, nature reserves, national parks, or other agencies and organizations according to the provisions of law.

b) Exhibits are individual dead animals or wildlife products, endangered, precious, or rare animals that perish quickly and are difficult to preserve, destroy, or hand over to a competent specialized management agency to handle according to the provisions of law.

c) Other evidence that does not fall under the guidance in Points a and b of Clause 1 of this Article shall be confiscated or destroyed according to the provisions of law.

=> Based on point c, clause 1, Article 7 of Resolution 05/2018/NQ-HDTP above, for evidence that is part of endangered, precious, and rare animals, the Court will declare confiscation or destruction.

* Problem 3:

People who destroy property belonging to historical-cultural relics or scenic spots with a value of 100 million VND or more commit the crime of "Violating regulations on protection and use of historical-cultural relics and scenic spots causing serious consequences" according to Article 345 of the Penal Code, or the crime of "destroying or intentionally damaging property" according to Article 178 of the Penal Code, or both crimes?

=> In case a person destroys property belonging to a historical-cultural relic or scenic spot and the destruction causes the property of the relic to be damaged or lose its use value, they will be prosecuted for criminal liability for the crime of destroying or intentionally damaging property according to the provisions of Article 178 of the Penal Code if there are all elements constituting a crime.

2. 07 questions about criminal procedure answered by the Supreme People's Court in Vietnam

* Problem 1:

The defendant committed many crimes. The Procuracy prosecuted these crimes but only prosecuted one crime. During trial, the Court judges the acts that have been prosecuted, but with 02 different crimes, does that violate the regulations on the limits of trial?

=> In case the defendant committed many crimes and the Procuracy prosecuted these crimes for one crime, then, based on the provisions of Point b, Clause 1, Article 280 of the Criminal Procedure Code, the Court returns the file to the Procuracy for additional investigation.

If the Procuracy still maintains the decision to prosecute, the Court will proceed with the trial of the case. During trial, the Court, based on Clause 1, Article 298 of the Criminal Procedure Code, only acts according to the crime prosecuted by the Procuracy.

* Problem 2:

The defendant is an accomplice in a case. During the trial, the defendant died. The defendant has private assets to compensate for damages. Will the court include the heirs of the deceased defendant's assets in the proceedings to resolve civil liability?

If so, how to determine the legal status of these people? When pronouncing a judgment on the defendant's obligation to compensate for damages, the defendant's heirs must be responsible for fulfilling their obligation to compensate for damages left by the defendant within the scope of the estate, or do they just need to declare the remaining co-defendants jointly responsible for compensation and separate the reimbursement claims of the accomplices (who have performed joint obligations on behalf of the deceased defendant) for the heirs of the defendant's property to resolve it into another civil case?

=>In the same case, when resolving the civil liability part of compensation for damages, the court brought the defendant's property heir to participate in the proceedings as a person with related rights and obligations. When performing the compensation obligation, based on Article 615 of the Civil Code, the heir is responsible for fulfilling the property obligations within the scope of the estate left by the deceased.

In case it cannot be resolved in the same criminal case, the Court shall force the remaining accomplices to be jointly responsible for compensating for damages. Pursuant to the provisions of Article 30 of the Criminal Procedure Code, the Court separates the civil case (resolving compensation obligations between other defendants and the defendant's heirs) according to civil proceedings.

* Problem 3:

In the same criminal case, there are many defendants, and each defendant is prosecuted under different provisions of the same law or for different crimes. So the period of temporary detention of suspects and defendants to prepare for trial is counted according to the detention period of the suspect; does the defendant have the longest detention period, or is it calculated according to the detention period of each type of crime corresponding to each suspect and defendant?

=> This issue was previously guided in Resolution 04/2004/NQ-HDTP dated November 5, 2004 of the Council of Judges of the Supreme People's Court guiding the implementation of a number of regulations in the third part, "first instance trial" of the Criminal Procedure Code 2003.

Through review, it is found that the guiding content in Resolution 04/2004/NQ-HDTP is still consistent with the provisions of the Criminal Procedure Code.

Therefore, in a case where there are many defendants prosecuted for many different crimes (less serious crimes, serious crimes, very serious crimes, especially serious crimes), the detention period for each defendant must not exceed the trial preparation period for the most serious crime for which that defendant is prosecuted.

* Problem 4:

The appellate trial panel has the right to amend the first instance verdict in a more favorable direction in terms of court costs and apply incorrect aggravating circumstances for criminal liability. Based on what provisions of law does the Appellate Trial Council correct these contents?

=> Although Clause 1, Article 357 of the Criminal Procedure Code does not stipulate that the Appellate Trial Council has the right to correct the first instance judgment on court fees, applying incorrect aggravating circumstances.

If correcting these two contents is beneficial to the defendant, the Trial Panel can apply the provisions of Article 345 of the Criminal Procedure Code on the scope of appellate trial to correct these two contents of the first instance judgment. However, the decision part of the sentence must be based on both Article 345 and Article 357 of the Criminal Procedure Code.

* Problem 5:

When the Court requests the extraction of a suspect or defendant who is serving a prison sentence in another case to serve a trial request in addition to the written request for extraction, does the Court still have to supplement the Detention Decision for prisoners who are suspects or defendants during the detention period?

=> In this case, instructions have been provided in Section 3, Part II of Official Dispatch 89/TANDTC-PC dated June 30, 2020 of the Supreme People's Court on announcing the results of online answers to some problems in the trial:

“For suspects and defendants who are serving a prison sentence in a previous case, a decision on detention will not be issued, but only a decision to extract them to serve the trial of the case. There is no basis for temporary detention according to the provisions of Article 119 of the Criminal Procedure Code.

On the other hand, Article 9 of Joint Circular 01/2020/TTLT-BCA-BQP-TANDTC-VKSNDTC stipulates the detention regime for this case, when extracted according to the Detention Order/Decision and not the Detention Decision.

* Problem 6:

In a criminal case, if the defendant falls into one of the cases specified in Article 12 of Resolution 326/2016/NQ-UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee stipulating the levels of collection, exemption, reduction, collection, payment, management, and use of court fees and charges, can criminal court fees be exempted?

=> Article 12 of Resolution 326/2016/NQ-UBTVQH14 belongs to the General Provisions Chapter, so when the defendant falls into one of these cases, he or she is also exempt from criminal court fees.

* Problem 7:

In a criminal case, at the first trial, the victim filed a request for trial in absentia, and the person protecting the victim's legal rights and interests filed a request for absence and requested to postpone the trial. In this case, should the Court postpone the trial or continue hearing the case?

=> In cases where the victim is absent, the Court, based on Clause 1, Article 292 of the Criminal Procedure Code, will consider postponing the trial or still proceed with the trial.

The Criminal Procedure Code does not stipulate that in the absence of a person protecting the victim's legitimate rights and interests, the Court will consider postponing the trial. Therefore, in this case, the Court still opens the trial according to regulations.

However, if the absence of a person to protect the victim's legitimate rights and interests affects the resolution of the case, the Trial Panel may rely on Article 305 of the Criminal Procedure Code and ask if anyone requests to postpone the trial. If so, the Trial Council will consider and decide.

More details can be found in Official Dispatch 206/TANDTC-PC issued on December 27, 2022.

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