The starting time of calculating the probation period for people serving suspended sentences in Vietnam

The starting time of calculating the probation period for people serving suspended sentences in Vietnam (Internet image)

The starting time of calculating the probation period for people serving suspended sentences in Vietnam

The starting time of calculating the probation period for people serving suspended sentences is based on the provisions of Article 5 of Resolution 02/2018/NQ-HDTP (supplemented by Clause 4, Article 1 of Resolution 01/2022/NQ-HDTP), as follows:

- In case the first instance court grants a suspended sentence and the judgment is not appealed or protested according to appellate procedures, the starting time for calculating the probation period is the date of pronouncement of the first instance verdict.

- In case the Court of First Instance grants a suspended sentence and the Court of Appeal also grants a suspended sentence, the starting time for calculating the probation period is the date of the pronouncement of the first instance sentence.

- In case the Court of First Instance does not grant a suspended sentence and the Court of Appeal grants a suspended sentence, the starting time for calculating the probation period is the date of the pronouncement of the appeal verdict.

- In case the Court of First Instance grants a suspended sentence, the Court of Appeal does not grant a suspended sentence, but the Council of Cassation annuls the appeal judgment for a retrial and the Court of Appeal grants a suspended sentence, the probation period is calculated from the date of the pronouncement of the first instance verdict.

- In case the Court of First Instance or Court of Appeal grants a suspended sentence, but the Council of Cassation annuls the first instance judgment or appellate judgment for investigation or retrial and after the first instance retrial or appellate retrial, the first instance court or appellate court still grants a suspended sentence, the probation period is counted from the date of the first instance verdict or first appeal verdict.

- In case the Court of First Instance does not grant a suspended sentence, the judgment is not appealed or protested against according to appellate procedures, but if the Council of Cassation amends the first instance judgment to grant a suspended sentence, the probationary period is counted from the effective date of the cassation decision.

- In case the Court of First Instance or Court of Appeal does not grant a suspended sentence but the Council of Cassation amends the appeal judgment to grant a suspended sentence, the probationary period is counted from the effective date of the cassation decision.

- In case the Court of First Instance grants a suspended sentence, the Court of Appeal does not grant a suspended sentence, but the Council of Cassation annuls the appeal judgment, upholds the first instance judgment, or amends the appeal judgment to impose a suspended sentence, then the probation period is counted from the date of pronouncement of the first instance judgment.

- In case the Court of First Instance grants a suspended sentence but the Court of Appeal annuls the first instance judgment for investigation or retrial and, after retrial, the Court of First Instance still grants the suspended sentence, the probation period is counted from the date of the next first instance verdict.

Conditions for people sentenced to prison to receive suspended sentences in Vietnam

According to Article 2 of Resolution 02/2018/NQ-HDTP (amended and supplemented by Resolution 01/2022/NQ-HDTP), 06 conditions for people sentenced to prison to receive suspended sentences include:

(1) Sentenced to imprisonment for not more than 03 years.

(2) The person sentenced to prison has an identity that, in addition to this crime, the offender complies with policies and laws and fully performs the obligations of a citizen in the place of residence and work.

- For people who have been convicted but are considered to have no criminal record, people who have been convicted but have had their criminal records erased, people who have been sanctioned for administrative violations or disciplined but as of the date of this crime, the time limit has passed and is considered to have not been administratively sanctioned or disciplined according to the provisions of law, if it is considered that the nature and severity of the newly committed crime is less serious or the offender is an accomplice with an insignificant role in the case and all other conditions are met, the sentence can also be suspended;

- For convicted persons who, when determining the crime, use the details "have been disciplined" or "have been sanctioned for an administrative violation" or "have been sentenced" and have all other conditions, the sentence can also be suspended;

- For convicted persons whose cases are separated to be resolved in different stages (split into multiple cases) and who meet other conditions, a suspended sentence may also be granted.

(3) There are 02 or more circumstances mitigating criminal liability, including:

  - There is at least 01 circumstance mitigating criminal liability specified in Clause 1, Article 51 of the Penal Code;

- There are no aggravating circumstances for criminal liability specified in Clause 1, Article 52 of the Penal Code.

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

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

In there:

- A clear place of residence is a place of temporary or permanent residence with a specifically determined address according to the provisions of the Law on Residence where the person receiving a suspended sentence resides and lives regularly after receiving the suspended sentence.

- A stable workplace is a place where the offender works for a period of 1 year or more under a labor contract or according to the decision of a competent agency or organization.

(5) It is deemed unnecessary to impose a prison sentence if:

- The offender has the ability to reform himself, and giving them a suspended sentence does not pose a danger to society;

- Does not adversely affect security, order, or social safety.

(6) When considering and deciding to grant a defendant a suspended sentence, the Court must carefully and closely consider the conditions to ensure that the suspended sentence is in accordance with the provisions of law, especially for the cases guided in Clause 2, Clause 4 and Clause 5, Article 3 of Resolution 02/2018/NQ-HDTP.

Nhu Mai

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