1. What is a Suspended Sentence?
Article 1 of Resolution 02/2018/NQ-HĐTP defines a suspended sentence as a conditional exemption from serving a prison sentence. A suspended sentence is applied to offenders sentenced to imprisonment for no more than three years, provided that, based on the offender’s personal background and mitigating circumstances, it is deemed unnecessary to compel them to serve the prison sentence.
2. Conditions for a Convicted Person to Be Granted a Suspended Sentence
According to Article 2 of Resolution 02/2018/NQ-HĐTP (amended and supplemented by Resolution 01/2022/NQ-HĐTP), a person sentenced to imprisonment may be considered for a suspended sentence if they meet all the following conditions:
– Sentenced to imprisonment for no more than three years.
– The person sentenced to imprisonment has a personal background indicating that, apart from the current offense, they have complied with policies and laws and fully fulfilled their civic duties in their place of residence and work:
+ For individuals who have been previously convicted but are considered to have no criminal record, or whose criminal record has been expunged, or who have been subject to administrative sanctions or disciplinary actions and, as of the date of the current offense, the period for considering them free of administrative sanctions or disciplinary actions has passed according to legal provisions, a suspended sentence may still be granted if the nature and severity of the new crime are deemed minor, or if the offender acted as an accomplice with an insignificant role in the case, and all other conditions are met.
+ For individuals convicted where the determination of the offense involved the aggravating circumstances of “previously disciplined” or “previously subject to administrative sanctions” or “previously convicted,” and all other conditions are met, a suspended sentence may still be granted.
+ For individuals convicted where the case has been separated for resolution in different stages (divided into multiple cases) and all other conditions are met, a suspended sentence may still be granted.
– Has two or more mitigating circumstances for criminal liability, including at least one mitigating circumstance specified in Clause 1, Article 51 of the Criminal Code, and no aggravating circumstances for criminal liability specified in Clause 1, Article 52 of the Criminal Code of Vietnam 2015.
If there are aggravating circumstances for criminal liability, the number of mitigating circumstances for criminal liability must be greater than the number of aggravating circumstances by two or more, including at least one mitigating circumstance specified in Clause 1, Article 51 of the Criminal Code.
– Has a clear place of residence or stable workplace for competent agencies and organizations to supervise and educate:
+ A clear place of residence is a temporary or permanent residence with a specific address determined according to the Law on Residence, where the person granted a suspended sentence regularly resides and lives after being granted the suspended sentence.
+ A stable workplace is a place where the offender has been working for one year or more under an employment contract or a decision by a competent agency or organization.
– It is deemed unnecessary to compel them to serve the prison sentence if the offender has the ability to reform themselves and granting them a suspended sentence does not endanger society or negatively affect security, order, and social safety.
– When considering and deciding to grant a suspended sentence to the defendant, the Court must carefully and strictly examine the conditions to ensure that the granting of the suspended sentence complies with legal provisions, especially concerning the cases guided in Clauses 2, 4, and 5 of Article 3 of this Resolution.
3. Cases Where a Suspended Sentence Is Not Granted
According to Article 3 of Resolution 02/2018/NQ-HĐTP (amended by Resolution 01/2022/NQ-HĐTP), cases where a suspended sentence is not granted include:
- The offender is the mastermind, leader, commander, stubbornly resists, is unruly, uses cunning tricks, acts professionally, abuses power for personal gain, or intentionally causes particularly serious consequences.
- The offender absconded after committing the crime and has been sought by procedural agencies or requested to be sought, unless they have surrendered before the decision to bring the case to trial.
- A person granted a suspended sentence commits a new crime during the probation period; a person currently serving a suspended sentence is tried for another crime committed before being granted the suspended sentence.
- A person tried for multiple offenses at the same time, except for one of the following cases:
- The offender is under 18 years of age.
- The offender is tried and convicted of two offenses, both of which are minor offenses, or the offender acted as an accomplice with an insignificant role in the joint crime.
- A person who has committed an offense two or more times, except for one of the following cases:
- The offender is under 18 years of age.
- All offenses committed are minor offenses.
- In all instances of offenses, the offender acted as an accomplice with an insignificant role in the joint crime.
- All offenses were committed when the offender voluntarily confessed.
- The offender falls under the category of recidivism or dangerous recidivism.
4. Probation Period for Suspended Sentences
4.1. Determining the Probation Period
When granting an offender a suspended sentence, the Court must set a probation period that is twice the length of the prison sentence, but no less than one year and no more than five years.
Note: The time spent in temporary detention or custody for a convicted person granted a suspended sentence is not deducted from the prison sentence duration when determining the probation period. However, if they commit a new crime during the probation period or violate obligations that require them to serve the prison sentence from the previously granted suspended sentence, then when resolving the matter, the Court will deduct this temporary detention or custody time from the prison sentence of the suspended sentence or the new sentence.
4.2. Commencement of the Probation Period
The commencement of the probation period is determined as follows:
- If the first-instance Court grants a suspended sentence and the judgment is not appealed or protested under appellate procedures, the probation period begins on the date the first-instance judgment is pronounced.
- If the first-instance Court grants a suspended sentence, and the appellate Court also grants a suspended sentence, the probation period begins on the date the first-instance judgment is pronounced.
- If the first-instance Court does not grant a suspended sentence, but the appellate Court grants a suspended sentence, the probation period begins on the date the appellate judgment is pronounced.
- If the first-instance Court grants a suspended sentence, but the appellate Court does not, and the cassation panel annuls the appellate judgment for re-appellate trial, and the re-appellate Court grants a suspended sentence, the probation period begins from the date the first-instance judgment was pronounced.
- If the first-instance Court and the appellate Court grant a suspended sentence, but the cassation panel annuls the first-instance and appellate judgments for investigation or re-trial, and after re-first-instance trial and re-appellate trial, the first-instance Court and appellate Court still grant a suspended sentence, the probation period begins from the date of the initial first-instance or appellate judgment pronunciation.
- If the first-instance Court does not grant a suspended sentence, and the judgment is not appealed or protested under appellate procedures, but the cassation panel amends the first-instance judgment to grant a suspended sentence, the probation period begins from the effective date of the cassation decision.
- If the first-instance Court and the appellate Court do not grant a suspended sentence, but the cassation panel amends the appellate judgment to grant a suspended sentence, the probation period begins from the effective date of the cassation decision.
- If the first-instance Court grants a suspended sentence, but the appellate Court annuls the first-instance judgment to investigate or re-try, and after re-first-instance trial, the first-instance Court still grants a suspended sentence, the probation period begins from the date of the subsequent first-instance judgment pronunciation.
4.3. Conditions and Extent for Shortening the Probation Period of a Suspended Sentence
A person granted a suspended sentence may have their probation period shortened by a decision of the District People’s Court or the Regional Military Court if they meet all the following conditions:
- They have served one-half of the probation period of the suspended sentence.
- They have shown significant progress, demonstrated by strict compliance with the law and obligations under the Law on Enforcement of Criminal Judgments during the probation period; actively studying, working, correcting mistakes, or achieving accomplishments in labor, production, or national security protection, recognized by a competent state agency.
- The commune-level People’s Committee, agency, or organization assigned to supervise and educate the person granted a suspended sentence recommends in writing to shorten the probation period.
Each year, a person granted a suspended sentence may have their probation period shortened only once, by one month to one year. A person granted a suspended sentence may have their probation period shortened multiple times, but the actual time served on probation must be three-quarters of the probation period pronounced by the Court.
If a person granted a suspended sentence has had a request to shorten their probation period submitted by a competent agency but it was not accepted by the Court, and if they meet the conditions in subsequent instances, the commune-level People’s Committee, agency, or organization assigned to supervise and educate them shall continue to propose shortening their probation period.
If a person granted a suspended sentence performs meritorious deeds or suffers from a severe illness and meets the conditions guided in Clause 1 of this Article, the Court may decide to shorten the remaining probation period.
- Meritorious deeds refer to instances where the person granted a suspended sentence assists a competent state agency in detecting, arresting, or investigating crimes; rescues others in dangerous situations; or saves property valued at over 50 million VND belonging to the state, collectives, or citizens during natural disasters, fires, epidemics, or accidents; or has initiatives recognized by a competent state agency or outstanding achievements in labor, study, combat, or work recognized by a competent state agency.
- Severe illness refers to a conclusion by a provincial-level hospital or military hospital of military region level or higher that the person granted a suspended sentence is suffering from a life-threatening disease with difficult treatment methods, such as: end-stage cancer, ascites cirrhosis, severe drug-resistant tuberculosis (Grade 4), poliomyelitis, heart failure (Grade 3), kidney failure (Grade 4 or higher); HIV in the AIDS stage with opportunistic infections, unable to care for themselves, and at high risk of death.
Deciding Penalties in Cases Where a Person Granted a Suspended Sentence Commits a New Crime During Probation or Another Crime Before Being Granted a Suspended Sentence
– If a person granted a suspended sentence commits a new crime during the probation period, the Court shall decide the penalty for the new crime and combine it with the prison sentence from the previous judgment in accordance with Articles 55 and 56 of the Criminal Code of Vietnam 2015; if they have been temporarily detained or held, the time in temporary detention or custody shall be deducted from the duration of the prison sentence.
– If it is discovered that a person currently serving a suspended sentence committed another crime before being granted the suspended sentence, the Court shall decide the penalty for that crime and shall not combine the penalty with the judgment granting the suspended sentence. In this case, the offender must simultaneously serve two judgments, and the execution of the judgments shall be coordinated by the agencies responsible for enforcing criminal judgments in accordance with the Law on Execution of Criminal Judgments of Vietnam 2019.
