Exemption and reduction of penalties in Vietnam criminal laws

ities are charged with lighter sentences if having extenuating circumstances and meeting statutory conditions as decided by the courts during trial in effective judgements. 2.1.3. Definition and features of exemption and reduction of penalties Based on definition, basic features and connotation of exemption of penalties and reduction of penalties, it is thought that a scientific definition on “exemption and reduction of penalties” is only developed after its basic features are identified as follows: Firstly, exemption and reduction of penalties are forms of penal liability, reflecting humanitarian policies of the State on natural persons and corporate legal entities committing crimes. Secondly, exemption and reduction of penalties reflect the principles of “punishment combined with leniency”, “punishment combined with education, persuasion, re-education” in criminal policies and basic principles of Vietnamese criminal laws such as penal liability classification, humanity, etc. Thirdly, exemption and reduction of penalties reflect leniency levels of criminal laws (of the State) applicable to natural persons and corporate legal entities committing crimes. Fourthly, exemption and reduction of penalties are solely applied by the courts. Fifthly, exemption and reduction of penalties are applied against natural persons or corporate legal entities during trial as decided by the courts. Sixthly, natural persons committing crimes but exempt from penalties are not criminally recorded while criminal records of corporate legal entities are automatically expunged 02 years from the end of judgement or decision serving. In case of reduction of penalties, these subjects still have criminal records as generally applied. Moreover, depending on each case, one or more judicial measures may be applied against people exempt from penalties by the courts (if necessary). Meanwhile, in case of general reduction of penalties, 8 natural persons or corporate legal entities committing crimes may still be subject to additional penalties. Therefore, based on the methodologies mentioned in the scope of research of the thesis and analysis in the section on exemption and reduction of penalties, it is proposed that exemption and reduction of penalties are defined as follows: exemption and reduction of penalties are forms of penal liability, reflecting criminal policies and basic principles of Vietnam criminal laws, being part of deciding sentences of the courts, being applied by the courts during trial in order to exempt or reduce penalties against natural persons and corporate legal entities committing based on extenuating circumstances if meeting statutory conditions. 2.1.4. Bases for provisions on exemption and reduction of penalties in Vietnamese criminal laws Based on criminal policies, provisions of criminal laws in different periods, practical adjudication, and legislative experiences in other countries, it is observed that provisions on exemption and reduction of penalties in Vietnamese criminal laws have three bases as follows. Firstly, in terms of theoretical basis: 1) criminal policies on penal liability classification, personalisation of penalties in criminal laws; 2) principle of humanity in criminal laws; 3) principle of equality in criminal laws; 4) ensuring objectives and effectiveness of penalties. Secondly, in terms of practical experiences: 1) diversity, complexity, and variety of acts of committing crimes; 2) prevention of crimes, re- education, increase of benevolence of natural persons and corporate legal entities committing crimes. Thirdly, in terms of legislation: 1) provisions on exemption and reduction of penalties ensure effectiveness of the courts’ decisions in practice; 2) compliance with international conventions joined by. 2.1.5. Importance of exemption and reduction of penalties Exemption and reduction of penalties in adjudication of the courts play a very important role. Proper exemption and reduction of penalties ensure compliance with socialist legal system, meeting requirements on purposes of penalties, reducing costs of criminal coercive measures. 2.2. PROVISIONS ON EXEMPTION AND REDUCTION OF PENALTIES IN THE HISTORY OF VIETNAM CRIMINAL LAWS STARTING FROM THE END OF AUGUST REVOLUTION 1945 TO ISSUANCE OF THE PENAL CODE 2015 In the history of Vietnamese legislation, prior to the first codification – the Penal Code 1985, special leniency measures were mentioned in scattered 9 legal documents and exemption of penalties were applied against offenders in practical adjudication. If offenders had extenuating circumstances, the courts might “flexibly” choose one of measures for penal liability reduction and exemption such as applying lighter sentences, exemption of penalties, acquitting, reducing penalties, exemption of penal liability... to apply in each case for each specific subject as prescribed in legal documents analysed from Sub-heading 2.21 to 2.2.3 in the thesis. In addition, in these sub-headings, the author also analyses provisions of the Penal Code 1985, 1999 and new provisions of the Penal Code 2015, pointing out development trend of the institution of exemption and reduction of penalties in the history of Vietnam criminal laws, and making comments on each period starting from the end of the Revolution 1945 to the issuance of the Penal Code 2015. Chapter 3 PROVISIONS ON EXEMPTION AND REDUCTION OF PENALTIES IN VIETNAM PENAL CODE 2015 AND IN PENAL CODES OF SOME COUNTRIES 3.1 PROVISIONS ON EXEMPTION AND REDUCTION OF PENALTIES IN VIETNAM PENAL CODE 2015 3.1.1. Classification of exemption and reduction of penalties in the Penal Code 2015 Classification of exemption and reduction of penalties is division of provisions on exemption and reduction of penalties into various groups against certain criteria or bases for research purposes, proper application and improvement of criminal laws. Research on provisions on exemption and reduction of penalties in the Penal Code 2015 and practical adjudication identifies three classification criteria and groups of provisions. 3.1.2. Provisions on exemption of penalties in the Penal Code 2015 a. Provisions on exemption of penalties in the general provisions of the Penal Code The General Provisions of the Penal Code 2015 provide for cases of exemption of penalties as follows: * General exemption of penalties against offenders (Article 59 Penal Code 2015) Article 59 Penal Code 2015 stipulates: “The offender might be exempt from punishment in the circumstances specified in Clause 1 and Clause 2 10 Article 54 hereof, provided he/she deserves the leniency but not to a degree eligible for exemption from criminal responsibility...”. * Indirect application of exemption of penalties against offenders under 18 (Point 4 Article 91 of the Penal Code 2015) Point 4 Article 91 of the Penal Code 2015 stiputlates “At the trial, the court shall only impose a sentence upon an offender under 18 years old if it is considered that .. compulsory education in a correctional institution specified in Section 3 of this Chapter do not have sufficient educational and deterrent effects”. Accordingly, although legislators do not directly recognise this case as exemption of penalties against people under 18 years old, it is thought that this case can be considered conditional exemption of penalties – i.e., judicial measure of “education in a correctional institution”. * Exemption of penalties against corporate legal entities commiting crimes (Article 88 of the Penal Code 2015) Article 88 of the Penal Code 2015 stipulates: “An offending corporate legal entity may be exempt from punishment after the damage has been repaired and compensation has been paid.”. However, unlike natural persons, corporate legal entities exempt from penalties are not recognised as having no criminal record in the Penal Code 2015. b. Provisions on exemption of penalties in the part on crimes Article 390 of the Penal Code stipulates “The person who fails to report the crime but does try to stop the criminal or reduce the consequences of the crime might be exempt from criminal responsibility or punishment” * Note: in addition to exemption of penalties provided for in the Vietnamese Penal Code 2015, the Criminal Procedure Code 2015 provides for a special case, exemption of penalties against people without penal liability capacity in Article 451. c. Legal consequences of exemption of penalties Presently, people exempt from penalties are considered guilty and subject to penal liability. They are already investigated, prosecuted and trialed, however, at the trial, the courts do not apply imprisonment, the most severe coercive measure of the State as there are bases for exemption of penalties. However, consequences are also specified, i.e. people exempt from penalties are not considered having criminal records (Point 2 Article 69 of Penal Code 2015). Therefore, in some specific cases, the law does not ensure equality for people exempt from penalties compared to people commiting administrative violations. It is recommended that this legislative gap should be closed. 3.1.3. Provisions on reduction of penalties in the Penal Code 2015 11 The Penal Code 2015 provides for reduction of penalties in trial at courts when applying sentences against people committing crimes in specific cases mentioned in Article 51, Point 1, 2 and 3 of Article 54. In addition, while the Penal Code 2015 provides for general reduction of penalties against corporate legal entities having extenuating circumstances(Article 84), there is no provision on reduction of penalties in specific cases for this subject. a. Provisions on general reduction of penalties against offenders General reduction of penalties against offenders means reduction of penalites within a penalty bracket if the offenders have general extenuating circumstancesas provided for in the Penal Code. Specifically, Point 1 Article 51 of the Penal Code 2015 provides for 22 general extenuating circumstances of penal liability. Moreover, Point 2 Article 51 of the Penal Code 2015 also stipulates: “When issuing a decision on sentences, the Court might consider the offender's turning himself/herself in or other circumstances as mitigating factors and specify the reasons in the judgment.”. However, as extenuating circumstances mentioned in Point 2 Article 51 of the Penal Code 2015 have lower legal validity than those mentioned in Point 1, level of reduction of penal liability is lighter. It is observed that in the Penal Code, legislators do not provide for specific levels of reduction of penalties against offenders having one or more general extenuating circumstances of penal liability. In practice, as conditions of offenders in different cases might vary, it is impossible to provide for such specific levels, the courts (judges) should be empowered to assess and decide on reduction of penalties based on a range of penalty bracket. However, this might result in arbitral decisions on reduction of penalties depending on subjective consciousness of the judges. Consequently, decisions on reduction of penalties against offenders committing similar crimes and acts with similar extenuating and agrravating circumstances of penal liability might vary in cases trialed by different judges. Meanwhile, there is no written guidance on how to calculate penalties against natural persons and corporate legal entities committing crimes. Therefore, the author proposes a methodology for calculation of penalties in Chapter 4 of the thesis. b. Provisions on special reduction of penalties against offenders Special reduction of penalties against offenders is reduction of penalties based on special conditions whereas offenders have at least 02 general extenuating circumstances(no less than two general extenuating circumstances) as prescribed in Point 1 Article 51 of the Penal Code 2015. This special reduction of penalties results in referring to the next lighter sentence bracket or applying a lighter penalty in one of circumstances as 12 follows: - Firstly, reduction of penalties to a sentence lighter than the lower limit of the current sentence bracket if it is in the next lighter bracket; - Secondly, reduction of penalties to a sentence below the lower limit of the current sentence bracket and it is not required to belong to the next lighter bracket; - Thirdly, reduction of penalties to a lighter sentence as specified in Point 3 Article 54 of the Penal Code. c. Provisions on general reduction of penalties against corporate legal entities General reduction of penalties against corporate legal entities committing crimes is reduction of penalties to a lighter sentence within a sentence bracket if offenders have general extenuating circumstancesspecified in the Penal Code. Point 1 Article 84 of the Penal Code 2015 provides for 05 general extenuating circumstance of penal liability applied to corporate legal entities for the courts to consider and make decisions on reduction of penalties. Similarly, in terms of reduction levels, the courts are empowered to make decisions on reduction of penalties against corporate legal entities committing crimes but only within the “bracket” – limit margin of examination of penal liability against corporate legal entities. If offenders have multiple extenuating circumstances of penal liability, the lightest sentence is applied and vice versa. In addition, Point 2 Article 84 of the Penal Code 2015 also specifies: “When deciding the punishments, the Court might consider the offender's other circumstances as mitigating factors and specify the reasons in the judgment”. d. Legal consequences of reduction of penalties Based on provisions of the Penal Code 2015, it is noticed that natural persons and corporate legal entities committing crimes and entitled to reduction of penalties still have criminal records as a general rule. Moreover, depending on each case, natural persons and corporate legal entities committing crimes might be entitled to reduction of penalties but still subject to additional penalties as a general rule. 3.2. PROVISIONS ON EXEMPTION AND REDUCTION OF PENALTIES IN PENAL CODES OF SOME COUNTRIES Presently, in the context of judicial reform with an aim to ensure justice and protect human rights in line with international standards, it is important to improve provisions of criminal laws in general and those on exemption and reduction of penalties in particular to meet international commitments and align with legal systems of other countries. Therefore, the 13 author has selected 05 countries for comparative research. Accordingly, Russian legal system is relatively similar to that of Vietnam. Noticeably, provisions of Russian criminal laws are carefully considered in development and improvement of Vietnamese criminal laws. Meanwhile, China has similar political institutions and social and economic conditions with Vietnam. While Japan does not have similar political institutions, its social traditions as an Asian developed country are relatively similar with Vietnam. Finally, France and Germany are selected as advanced and typical European Continental legal systems. Provisions of criminal laws in these countries are analysed from Sub-heading 3.2.1 to 3.2.5. of this thesis. Key findings from comparative research of criminal laws of these countries are as follows: Firstly, provisions on exemption and reduction of penalties in the selected countries are diverse. Exemption of penalties is specified in laws in some countries such as France, Germany, Japan, and China. Meanwhile, it is not specified in Russia. Both exemption and reduction of penalties are specified in China. Russian provisions on reduction of penalties are similar to those in Vietnam. While Russia provides for general reduction of penalties in its Penal Code, some countries including China, Japan and Germany have no provisions on general reduction of penalties but only those on special reduction of penalties. France has no provisions on reduction of penalties. Secondly, like Vietnam, the Penal Codes of Japan and China specify that the courts might consider, in addition to statutory circumstances, other extenuating circumstances as bases for applying a lighter sentence. However, in China, the Supreme People’s Court has the sole power to make decisions on these cases. Thirdly, like Russia, it is recommended that the Vietnamese Penal Code should provide for consideration of extenuating circumstances as basis for exemption of penalties or making decisions on a lighter sentence. Consideration of extenuating circumstances is important. Only when such circumstances exist that offenders are entitled to special leniency including exemption and reduction of penalties to a lighter sentence. Fourtly, it is worth to refer to a specific provision on automatic exemption of penalties in the German Penal Code for further improvement of Vietnamese Penal Code. Accordingly, offenders “might be exempted from penalties by the courts if consequences of the acts of commiting crimes are too severe that application of penalties is no longer meaningful, for example, offenders causing traffic accidents to their spouses and children, etc. Fifthly, in addition, legislators might provide for which extenuating circumstances are considered most fundamental and important ones, ensuring timeliness, accuracy and effectiveness of case settlement, and reflecting the 14 highest posibility of re-education, re-transformation, repentance of offenders. For example, in the Penal Codes of Russia and and France, turning oneself, mitigation and prevention of consequences, making compensation, etc., are considered fundamental extenuating circumstances for exemption and reduction of penalties. Chapter 4 PRACTICAL ENFORCEMENT, ISSUES FOR FURTHER IMPROVEMENT AND MEASURES TO ENSURE EFFECTIVE APPLICATION OF PROVISIONS ON EXEMPTION AND REDUCTION OF PENALTIES 4.1. PRACTICAL ENFORCEMENT OF PROVISIONS OF VIETNAMESE PENAL CODE ON EXEMPTION AND REDUCTION OF PENALTIES BY PEOPLE’S COURTS AT ALL LEVELS 4.1.1. Practical enforcement of provisions on exemption of penalties Statistics on exemption of penalties are not collected separately but combined with those on exemption of penal liability by the people’s courts. According to statistics of the Supreme People’s Court, practical enforcement of provisions on exemption of penalties and exemption of penal liability from 2010 - 2020 is summarized in the Chart below: 15 PRACTICAL ENFORCEMENT OF PROVISIONS ON EXEMPTION OF PENALTIES OR EXEMPTION OF PENAL LIABILITY Exemption of penalties or exemption of penal liability Number of defendants Percentage (%) Practical enforcement of judicial measures as alternative measures for penalties against people under 18 years old (conditional exemption of penalties) by the courts during trial is summarized in the Chart below: PRACTICAL ENFORCEMENT OF JUDICIAL MEASURES AGAINST PEOPLE UNDER 18 YEARS OLD (conditional exemption of penalties against people under 18 years old) Number of defendants under 18 years old entitled to exemption of penalties or exemption of penal liability Percentage (%) Noticeably, statistics of the Supreme People’s Court show that annual percentage of defendants entitled to exemption of penal liability or exemption of penalties is less than 0.05%. Statistics combining number of defendants entitiled to penal liability with that of exemption of penalties show that these measures are applied at a high ratio in some years but mostly focusing on exemption of penal liability. It is also observed that percentage of cases entitled to exemption of penal liability and exemption of penalties in some years is higher than others as a result of revision and amendment of laws or 16 issuance of new laws leading to increase of cases entitled to exemption of penal liability when these laws enter into force but not because of exemption of penalties. Percentage of defendants entitled to exemption of penalties or exemption of penal liability in 2010 is almost equal to that of the first six months of 2020, at a very low ratio (0.03%). In practice, since 2016 until present, some courts have not applied exemption of penalties against offenders. The author has also randomly studied 300 criminal judgements at first instance, appeal, and cassation levels issued by the People’s Court of Hai Duong city, the Superior People’s Courts in Hochiminh city and Hanoi city NCS. It is found that exemption of penalties is not applied in all these 300 judgements (see Annex for details). According to statistics on cassation cases at the Superior People’s Court of Hanoi city from its establishment in 2015 to 31 May 2020, none of 518 cassation cases applies exemption of penalties against defendants. 4.1.2. Practical enforcement of provisions on reduction of penalties Prior to 2014, there was no statistics on cases entitled to reduction of penalties nor application of Article 46, Article 47 (Penal Code 1999), presently Article 51, Article 54 (Penal Code 2015) at people’s courts. Accordingly, over the last 07 years counting from 2014, number of defendants entitled to extenuating circumstances are relatively high, accounting for more than 70% in some years (2016, 2017). Number of defendants entitled to sentences below lower limit of the sentence bracket under Article 47 of the Penal Code 1999 (Article 54 of the Penal Code 2015) are also high but still lower than those entitled to lighter sentences within the same bracket. In most of cases where dossiers are not returned for further investigation or defendants do not appeal for innocence, extenuating circumstances are considered to apply lighter sentences. Review of 300 judgements (see Annex for details) also shows that maximum sentences of the brackets are only applied in few cases as most of defendants are entitled to lighter sentences. Defendants in extremely serious cases with death penalty or life imprisonment as maximum sentences are often not granted lighter sentences even if they have extenuating circumstances. Maximum sentences are often applied in these cases. Defendants in cases with determinate imprisonment sentences are often entitled to lighter sentences, of which maximum sentences are not applied in 99% of cases. 4.1.3. Achievements Provisions on exemption and reduction of penalties are properly applied in trial in compliance with the laws, resulting in effective re- 17 education and rehabilitation of offenders (as the Penal Code 2015 entered into force as from 1 January 2018, no case is recorded relating to corporate legal entities committing crimes), ensuring effectiveness of crime prevention, saving costs for coercive measures, reflecting humanitarian policies, promoting honesty, and making contributions to stabilisation of social order. From 2010 to 31 May 2020, there are 3.383 cases entitled to exemption of penalties or exemption of penal liability while exemption of penalties is not properly applied in only few cases. According to statistics of the Supreme People’s Court and the Superior People’s Court of Hanoi on cassation and review cases over the past 10 years, no case is appealed under cassation and review procedures for reasons relating to exemption of penalties against ineligible defendants. So far, the author only finds few cases where provisions on exemption of penalties are not properly applied. In most of these cases, either eligible defendants are not granted exemption of penalties by the courts or the courts apply provisions on exemption of penal liability or other institutions in stead of exemption of penalties. Provisions on exemption and reduction of penalties are properly applied by the courts, reflecting policies on classification of penal liability and humanity, ensuring principles of equality, retribution and re-education of offenders, and general prevention of crimes. 4.1.4. Shortcomings and main reasons a. Shortcomings in enforcement of provisions on exemption of penalties Shortcomings in enforcement of provisions on exemption of penalties by the courts are often found in circumstances as follows: - Offenders are eligible but not exempted from penalties (for example, Judgement No. 05/2019/HSPT issue