1. What constitutes committing an offense in cases of excessive force when apprehending an offender?
According to the guidance in Clause 5, Article 2 of Resolution 04/2025/NQ-HĐTP, committing an offense in cases of excessive force when apprehending an offender is where, to apprehend an individual committing a criminal act, there is no other option but to use necessary force causing harm to the apprehended person, but in reality, the force used clearly exceeded the necessary level, causing harm to the apprehended person.
Example: Nguyen Van A apprehended Nguyen Van B for snatching a handbag from a passerby. Although B was already subdued, A repeatedly punched and kicked B, despite being intervened by others. As a result, B suffered broken legs and arms, with a bodily injury rate of 65%. A’s actions exceeded the necessary level when apprehending the offender. In this case, Nguyen Van A would be applied the mitigating circumstance for criminal liability stipulated in Point d, Clause 1, Article 51 of the Criminal Code.
2. Is committing an offense in cases of excessive force when apprehending an offender a mitigating circumstance for criminal liability?
The mitigating circumstances for criminal liability are stipulated in Article 51 of the Criminal Code of Vietnam 2015 (amended by Point a, Point b, Clause 6, Article 1 of the 2017 Law amending the Criminal Code) as follows:
– The offender prevented or reduced the harm caused by the crime;
– The offender voluntarily rectified, compensated for damages, or remedied the consequences;
– Committing an offense in excess of the limits of legitimate self-defense;
– Committing an offense in excess of the requirements of a state of necessity;
– Committing an offense in cases of excessive force when apprehending an offender;
– Committing an offense due to mental provocation caused by the victim’s unlawful act;
– Committing an offense due to particularly difficult circumstances not self-inflicted;
– Committing an offense but not yet causing damage or causing minor damage;
– Committing an offense for the first time and being a minor offense;
– Committing an offense due to being threatened or coerced by another person;
– Committing an offense while having limited cognitive ability not caused by one’s own fault;
– Committing an offense due to backwardness;
– The offender is a pregnant woman;
– The offender is 70 years old or older;
– The offender is a severely or especially severely disabled person;
– The offender has an illness that limits their cognitive ability or ability to control their behavior;
– The offender surrendered;
– The offender honestly confessed and showed remorse;
– The offender actively cooperated with the competent authority in detecting crimes or during the resolution of the case;
– The offender performed meritorious acts to atone for their crime;
– The offender is a person with outstanding achievements in production, combat, study, or work;
– The offender is a person with meritorious contributions to the revolution or is a parent, spouse, or child of a fallen soldier.
Thus, committing an offense in cases of excessive force when apprehending an offender is considered a mitigating circumstance for criminal liability.
3. Notes on applying mitigating circumstances for criminal liability
– When deciding on a penalty, the Court shall base its decision on the provisions of the Criminal Code, considering the nature and degree of social danger of the criminal act, the personal background of the offender, and the mitigating and aggravating circumstances for criminal liability.
– The Court may decide on a penalty below the lowest level of the applicable penalty framework but must be within the immediately lighter penalty framework of the article when the offender has at least two mitigating circumstances stipulated in Clause 1, Article 51 of the Criminal Code of Vietnam 2015.
– Mitigating circumstances belonging to a co-offender shall only be applied to that co-offender.
– Mitigating circumstances already stipulated in this Code as elements for defining a crime or its framework shall not be considered mitigating circumstances when deciding on a penalty.
– When imposing a prison sentence not exceeding 03 years, based on the personal background of the offender and the mitigating circumstances, if it is deemed unnecessary to compel the execution of the prison sentence, the Court shall grant a suspended sentence and set a probation period of 01 to 05 years, and impose obligations during the probation period according to the provisions of the Law on Execution of Criminal Judgments.
