Entitled to a suspended sentence if there are at least 02 mitigating circumstances, the probation period is determined to be 02 times the imprisonment sentence, and no suspended sentence is granted for crimes committed by ringleaders or commanders… these are notable new points in the Draft Resolution guiding the application of Article 65 of the 2015 Penal Code on suspended sentences recently issued by the Supreme People's Court of Vietnam.
Article table of contents
Full Draft Resolution on Guidelines for Article 65 of the Penal Code 2015 on Suspended Sentences
1. No suspended sentence for the crime leader, commander, and the accused who escaped while out on bail
The Draft stipulates two cases where a suspended sentence is not granted, including:
- First, the offender is the mastermind, commander, leader, persistently resisting, hooligan, dangerous recidivist, abusing authority and position to commit the crime, or committing the crime using deceitful means, professional nature, intentionally causing particularly serious consequences;- Second, the accused, while out on bail, escaped during the preparatory stage for trial, and the Court has requested the investigation agency to issue a wanted notice.
In the first case, the offender can still be granted a suspended sentence if they meet all conditions for a suspended sentence and also have circumstances such as surrendering, confessing, sincerely declaring, denouncing the crime, or performing meritorious acts.
2. Eligible for a suspended sentence if there are at least 02 mitigating circumstances
Besides the condition that the imprisonment sentence does not exceed 03 years and based on the offender’s character, the person eligible for a suspended sentence must also meet the condition of having mitigating circumstances.
They must have at least 02 mitigating circumstances, including 01 mitigating circumstance as stipulated in Clause 1, Article 51 of the Penal Code 2015 and no aggravating circumstances in Clause 1, Article 52 of the Penal Code 2015.
In cases where there are both mitigating and aggravating circumstances, the mitigating circumstances under Clause 1, Article 51 of the Penal Code 2015 must be more than the aggravating circumstances under Clause 1, Article 52 of the Penal Code 2015 by at least 02 circumstances.
3. Probation period set at twice the imprisonment sentence
The probation period for an offender on a suspended sentence is determined to be twice the imprisonment sentence. If the offender has been detained, the probation period is calculated by subtracting the detention period from the imprisonment sentence and then multiplying by 2.
Probation period = 2 x Imprisonment sentence
Probation period (with prior detention) = 2 x (Imprisonment sentence – Detention period)
The probation period must be no less than 01 year and no more than 05 years.
4. Reduction of the probation period based on suspended sentence duration
The offender may have the probation period shortened if all lawful conditions are met. The duration of the reduction depends on the length of the suspended sentence.
For an offender granted a 1-year suspended sentence, the probation period can be reduced once by 1 month to 1 year.
A person granted a suspended sentence can have the probation period reduced multiple times, but must actually serve three-quarters of the probation period set by the Court.
5. Time served on a suspended sentence is not counted towards imprisonment term
This rule applies to cases where the person granted a suspended sentence is obligated to serve the imprisonment sentence of the judgment granting the suspended sentence.
A person granted a suspended sentence who deliberately violates obligations stipulated in Article 64 of the Law on Execution of Criminal Judgments 2010 twice or more must serve the imprisonment sentence of the judgment granting the suspended sentence. Time served on a suspended sentence is not counted towards the imprisonment term.
6. Combining sentences upon discovering new crimes
If a person granted a suspended sentence is prosecuted for another crime committed before the suspended sentence was granted, the Court can still grant a suspended sentence if:
- The offender is not subject to the cases not granting a suspended sentence stipulated in Article 3, and has sufficient conditions for a suspended sentence as per Article 2 of the Resolution guiding the application of Article 65 of the Penal Code 2015 on Suspended Sentences;- At the same time, the combined sentences of the two judgments do not exceed 03 years of imprisonment.
If a person granted a suspended sentence commits a new crime during the probation period, the Court shall combine the sentences as per Articles 55 and 56 of the Penal Code 2015. If the offender has been detained, the detention period will be subtracted from the imprisonment term.
