Imposing penalties under vietnamese criminal law – A case study of military courts

dualization of punishment stipulated in the Penal Code to be the legal basis for the Court imposes properly penalties upon offenders and this process brings criminal law into real life, the imposition of penalties of the Court must be agreed by the people. In order to achieve penalty’s goals, especially educating and re-educating offenders, when individualizing punishment, the Court must apply appropriate types of penalties and fines. - The principle of fairness 8 This principle means that the Court must choose the type of penalty and the level of penalty to be commensurate with the nature and danger of offenders and their personal record to the society so as to ensure assertiveness, argument and reasoning. The Court must study comprehensively, objectively, and fully all circumstances of the case and considering the overall nature and danger of offenders and their personal record to the society, the aggravating/extenuating circumstances of criminal liability, a sense of law, conditions, education capability of the offenders, thereby Adjudicators and Jurors may decide a fair and suitable penalty for the offenders. The principle of fairness requires the punishment imposed by the Court reflecting the correctness of public opinion, the sense of law, social morality and persuasion. - The principle of ensuring social determinant Social determinant is a principle in imposing penalties of the Court. This principle shows that when the Court applies a penalty for the offender, the role of persuasion and coercion is associated with reasonable education measures while executing punishment to achieve the social effect of the punishment. In order to implement well this principle, the Court must realize the imposition of punishment is always a profound social process and must seek, consider, and assess the grounds to individualize punishments corresponding to the dangerous nature of the crimes for the society based on objective and comprehensive consideration of personal record and extenuating/aggravating circumstances of criminal liability of the offenders. - The principle of independence, impartiality, objectivity and comprehensiveness When imposing penalties, the Court must ensure the important elements are independence and impartiality. This is one of the prerequisites for imposing the right penalty so as to ensure the objectivity, fullness and comprehensiveness of circumstances of the case. On the basis of an objective and comprehensive review of all circumstances of the case, and dangerous action of offenders, when imposing penalties upon convicted person, the Court must strictly comply with independence and impartiality, do not allow any individual or organization to disturb its decision. 9 2.2. Tasks, contents and meanings of imposing penalties 2.2.1. Tasks of imposing penalties The imposition of penalties consists of the following basic tasks: Applying criminal liability for defendants; imposing penalties upon defendants; selecting necessary penalties and levels within the scope of the Penal Code; synthesizing penalties and deciding measure of executing the penalties. 2.2.2. Contents of imposing penalties Imposition of penalties is a stage and a content of applying the criminal law to individualize criminal sanctions in specific criminal cases. This is a new research direction on the application of the provisions of the criminal law for offenders. The imposition of penalties includes the contents of applying the criminal law and also its own contents such as: to determine fully, accurately and objectively cases’ circumstances related to imposing penalties; determine the validity of criminal law documents and awareness of the provisions of the criminal law related to imposing penalties; select criminal liability measures, punishments and specific levels corresponding to offenders and then making a judgment. 2.2.3. The meanings of imposing penalties 2.2.3.1. Socio-political meanings Imposition of right penalties is to protect justice, human right, the State’s interests, as well as the legitimate rights and interests of organizations and individuals in the criminal field, contributing to the protection of social balance, strengthening socialist legislation, and guaranteeing social order and discipline. This will improve the Court’s prestige in exercising the judicial right in particular and of the judiciary in general so as to reinforce their credibility and the people’s confidence towards the leadership of the Communist Party of Vietnam (CPV), as a basis for improving the efficiency and purpose of penalties, especially educating and re-educating offenders to prevent them from re-committing crimes, and warning and deterring others. 2.2.3.2. Legal meanings Imposition of right penalties is the first legal basis to achieve punishment, which has important legal significance while executing 10 criminal cases. It is also the first legal basis to show the correctness and reasonableness of criminal legal documents so as to turn offenders into good and useful citizens who comply with the law and rules of life in order to prevent them from re-committing crimes, achieving efficiency in executing judgment and educating others to respect the law. 2.2.3.3. Meanings of education and prevention Imposition of penalties has a positive meaning in preventing and fighting against crimes. The imposition of right penalties will contribute to reinforcing the system of criminal law, legislation and socialist legal order. It has a profound effect in educating the people as well as deterring and preventing new crimes. The court’s imposition of right penalties will make the people see the correctness and strictness of the criminal law, the people will be self-aware and voluntarily comply with the law, they are more actively involved in preventing and combating crimes, contributing to strengthening the socialist legal system. 2.3. Factors affecting the imposition of penalties 2.3.1. The quality of the Criminal Code and the Criminal Procedure Code The Penal Code (PC) and the Criminal Procedure Code (CPC) are the major legal bases and are two important and decisive acts for all activities of imposing penalties of the Court. The provisions of the PC and the CPC are an important legal basis for imposing penalties and forecasting fully cases that can occur in society; to clearly define limitations between this offence and others to reduce mistakes and injustice in the process of investigating, prosecuting and hearing. The high quality of the CP and CPC will be the basis for ensuring the quality of imposing penalties. 2.3.2. The capacity of Judges and Jurors Judges and Jurors are persons who directly adjudicate and imposing penalties on offenders, and deciding politico-economic rights and interests as well as the right to live of the offenders. The Judges and Jurors must have good moral qualities, hearing skills and legal knowledge, they must also comply with the law, have practical experiences of life to carry out well this special proceeding. Ethical qualities and competencies of the Trial 11 Panel play a very important role and directly impact on the effectiveness of imposing penalties. 2.3.3. Independence and compliance with the law of Judges and Jurors Judges and Jurors’ hearing and compliance with the law are one of the basic and important principles of the CPC, as a very important factor that directly affects the effectiveness of imposing penalties. Judges and Jurors must always strictly comply with principle of independent hearing and the law. They must also comply with principle of collective hearing of the Court and decide by majority without being governed by any agency, organization or individual. Judges and Jurors must have a firm bravery while enforcing the law and an inner belief when imposing penalties, that is factors to maintain independence while adjudicating. 2.3.4. Ensuring conditions for Judges and Jurors Ensuring well interests, living and working conditions for Judges and Jurors will have a positive impact on the quality of imposing penalties. Additionally, it is necessary to pay attention to the strategy of creating Judge forces, focusing on training and building up the judicial staffs, Court Clerks and Judges who have qualification, capacity, professional ethics enough and “immune reaction” to negative problems of the society so as to meet the requirements of judicial reform. 2.3.5. The quality of proceedings of Investigative Agencies and Procuracies It is necessary to have accuracy and objectivity in investigating, prosecuting and condemning because they play an important and decisive role to the comprehensive and objective truth of the case, help the Court to hear and apply accurately penalties so as to promote the effects of punishment and enhancing the efficiency of education and prevention. 2.3.6. Ensuring uniform application of law To uniformly and properly apply the law, the state’s agencies must regularly review practical experiences and issuing uniform guiding documents on the application of the law, especially building a coherent and strict system of case law. 12 The source of law is case law and the case law plays an important role in applying the law and has a certain effect on the quality of imposing penalties. 2.3.7. Public opinion Public opinion plays a significant role and multidimensional influence on social life. Although the Court’s imposition of punishments bases on regulations of the criminal law, in addition to considering Vietnamese socio-economic, traditional and moral conditions, the Court must consider public opinion to impose accurately penalties and corresponding to the re- education and specific circumstances of the convicted person. The sentence must be supported by public opinion, as such the penalty just has the highest effect in social life. 2.3.8. Preventing and combating crimes The requirement of preventing and combating crimes is a factor that has a significant impact on the quality of imposing penalties of the Court. The specific requirements of fighting against crimes also change in each period of history and depend on the social development, political security situation, social order and safety in the country, and the international situation and the socio-economic development of the country in the context of revolution 4.0 – the development of modern IT, qualifications and knowledge of citizens in society. 13 Chapter 3 THE REALITY OF LEGAL BASIS OF IMPOSING PENALTIES AND MILITARY COURT’S IMPOSITION OF PENALTIES IN PRACTICE 3.1. The reality of legal basis of imposing penalties 3.1.1. Regulations on thepenalty system The penalty system has important significance for both theoretically and practically. When applying penalties, the Court must comply with conditions, scope and limits of each penalty stipulated by the PC. The penalty system provides for natural person, commercial legal entity who commit crimes and offenders under 18 years of age, the way of dealing with each type of crimes and offenders. 3.1.2. Sanction of criminal law norms for crimes The PC provides major penalties and additional penalties for natural person, commercial legal entity who commit crimes, as well as types and limits of penalties for each crime. In principle, the Court can only apply penalties in such sanction, unless the offender is eligible and the Court decides to switch to a lighter penalty. The criminal law provides 3 types of sanctions including absolute sanction, optional sanction and arbitrary sanction 3.1.3. Regulations on the basis for deciding penalty When deciding penalties, the Court bases on the provisions of the PC, nature and seriousness of the offender for society. It also bases on personal identity of the offender and extenuating/aggravating circumstances of criminal liability. To give the right penalty, Judges and Jurors must rely on their legal consciousness that is a crystallization of legal thought and awareness to be built from practical experience, ethics, bravery, and responsibility of citizens for society, choosing the right penalties to ensure rationality and fairness. 3.1.4. Regulations on penalty decisions in some special cases In addition to the penalty system, sanctions and bases for deciding penalties, the criminal law also stipulates conditions and capabilities of imposing penalties in special cases such as exemption from criminal liability and punishment and deciding a lighter punishment than provisions of the law, suspended sentence. 14 3.1.5. The provisions of the CPC should comply with in imposing penalties The imposition of punishment is a stage and a content of applying criminal law, and it is carried out by orders and procedures stipulated by the criminal law, so the provisions of the CPC are legal basis for imposing penalties and very important to this activity. The Court strictly comply with provisions of the CPC will assure that the imposition of punishments is lawful, objective, reasonable and fair; ensuring the CPC’s mission is to protect justice, human rights, civil rights, socialist regimes, the State’s interests, and legitimate rights and interests of organizations and individuals so as to not accuse innocent people and enhancing the efficiency of the fight against crimes. 3.2. Military Court’s imposition of penalties in practice 3.2.1. Overview of the situation of imposing penalties at military courts Military Court’s imposition of penalties over the years has achieved positive results, most of the trial panels achieved good results, ensure trial of right person, right offenses and right law to minimize missed crimes, especially, through the trial levels, no one was unjustly sentenced. The Military Court tends to increase the use of non-custodial sentences but gradually reduces suspended sentences. The Military Court’s decisions are based on the results of public litigation at a court hearing. Judges and Jurors have upheld their responsibility in hearing and expressed their bravery, fortitude, stance and right awareness of the provisions of the criminal law while condemning and applying contents of penalties. Imposing correctly penalties will achieve purposes of hearing and punishments to ensure accurateness, objectiveness, fairness and humanity of our country’s criminal policies to educate and re-educate offenders. 3.2.2. Defining circumstances of the case as a basis for penalty decision in practice Defining the nature and danger of offense to the society is a very important content of the Military Court’s awareness and imposing penalties in practice. Based upon the nature and danger of offense to the society means must base on the nature and consequences or threats; base on mistakes of offense and the nature of offense such as mode, ruse, means, tools, and circumstances of offenders. 15 Defining grounds of personal identities of offenders means the Court based upon personal identities of offenders which consider their conditions and circumstances besides other grounds in order to assess accurately dangerous acts for the society and making penalties consistent with education and re-education of the convicted persons. In practice, when deciding penalties, the Military Court not only bases on the provisions of the PC, the nature and danger of offense to the society, but also bases on other grounds that related to the quality of imposing penalties as well as punishment’s purpose and social justice. Defining criminal liability extenuating/aggravating circumstances to assess dangerous level of offense to the society. Every offense has its own motive and purpose, each subject of a certain crime has its own features to make circumstances related to the case and offense, of which, according to the PC, are criminal lability extenuating or aggravating circumstances for those who have committed crimes. 3.2.3. Imposing suspended sentences at Military Court in practice In fact, from 2009 to 2018, the Military Court sentenced termed imprisonment for 2,281 defendants out of 3,381, in which suspended sentence for 1,017 defendants, accounting for 35.30% of the total number of defendants of termed imprisonment and 30.08% of the total number of defendants who have been tried. It can be seen that, the number of defendants enjoy suspended sentences of the Military Court is still low but this has created favorable conditions for many defendants can educate themselves to become useful people in the society and do not recommit crimes. The suspended sentence will encourage convicted persons to self- improve and work in the community through warm-heartedly help of their family and society and also warn them that if they commit a new crime during challenging time, they will be forced to serve imprisonment sentence. This challenging time of the suspended sentence is very important because it is possible to check the correctness of the suspended sentence, and to have a reasonable punishment for the convicted person if they violate the challenging time of the suspended sentence. 3.3. Military Court’s common limitations and mistakes in imposing penalties and causes In practice, the Military Court’s imposition of penalties depends on the requirement of fighting against crimes and also reveal certain shortcomings 16 that reduce the effectiveness of punishments. Although some punishments of the PC aim to educate, re-educate, and prevent offenders from committing new crime, punishments of expulsion, residence ban, and control are not applied. Some punishments are rarely applied such as warning accounting for 0.27% only, non-custodial reform is 4.26% (main penalty), expelling is 0.03%, expropriation of some civil rights is 0.18%, confiscation of assets is 0.18% and fine is 2.07% (additional penalty). The Military Court’s imposition of penalties over the years also emphasizes the punitive purpose, so the punishments with educational significance in the community are still low. From 2009 to 2018, the Military Courts imposed warning, fines and non-custodial reform on 484 defendants, accounting for 14.31% out of 3.381 defendants. This rate is low and not shows well the duty of judicial reform under the Politburo’s Resolution No. 49-NQ/TW dated2 June 2005 on the strategy of judicial reform by 2020 “Reducing imprisonment penalty and expanding the application of fines and non- custodial reform”. According to statistics, between 2009 and 2018, the Military Courts tried 369 cases with 695 defendants, court of appeals corrected the crimes for 02 defendants, cancelled first-instance judgment for 54 defendants, 7 innocent defendants, 78 defendants were transferred to serve imprisonment, 06 defendants were increased imprisonment level, 87 defendants were decreased imprisonment level, 05 defendants were transferred penalties and 02 defendants were amended the additional penalty. Statistics also show that the Military Court tried on cassation and reopening criminal cases of 15 defendants, of which did not accept an appeal to 1 defendant, cancelled first-instance judgment or appellate to investigate and re-trial 10 defendants, cancelled partially the first-instance or appellate judgement for 03 defendants. The limitations and obstacles in the trials of the Military Court are shown in the awareness of the application of the provisions of the PC, CPC, civil law and judicial measures. 3.3.1. Imposition of penalties There are still some cases of wrong awareness, evaluation and application of criminal liability aggravating/extenuating circumstances, application of suspended sentences, favorable circumstances of defendants, although not much, it directly affects the individualization of punishments. Incorrectly assess the nature and danger of offense and personal identities 17 of the offenders to the society leading to the imposition of unreasonable penalties. In appellate trial, there are cases that the Appellate Court cancels the first-instance judgment to investigate and re-trial but not persuade and insufficient solid grounds; extenuating circumstances of defendants at the lowest level have been applied by the first-instance court but the Appellate Court still applies for the suspended sentences. 3.3.2. Implementing the provisions of the CPC in imposing penalties Most of cases that the Court decided to return files for additional investigation have grounds. However, there are still cases of returning files to be not accurate, groundless or not necessary, especially civil evidence so the Procuracy does not accept. In some cases, the postponement of the trial, detention of defendant or the declaration of appeal time of the defendant is not consistent with provisions of the law. Proceeding-conducting procedures at the trial panel, some Judges have not done well adversarial process at a court hearing. The incorrect or inaccurate determination of the scope of appellate trial according to contents of appeals and protests leading to the appellate judgment is incomplete, inconsistent, and inaccurate one or beyond jurisdiction of the appellate court. 3.4. The cause of the limitations and mistakes 3.4.1. Objective reasons The PC and authorities had specific regulations and guidelines but grounds and conditions of imposing penalties are inflexible, this leads to limit the promotion of such characteristics and cannot individualize the imposition of punishment. In some cases, the provisions of the PC have overlapped contents so it is hard to apply. There are provisions in favor of offenders but the legal knowledge of some Judges and Jurors is not similar so the imposition of punishment is still inconsistent and timely. 3.4.2. Subjective reasons The force of Judges, Jurors and officials of Military Courts has not really met both the quantity and the quality.The capacity of a number of Judges and Jurors is still limited, they have not promptly studied and updated legal documents, their working responsibility is not high, simple thinking, carefulless, and their study of case is not comprehensive and objective. In some cases, the independence and responsibilities of the Judges and members of the trial panel are not high, especially some Judges still rely on 18 opinions of leader and the Judge Committee, so they are not independent and dare not take responsibility. Thus, the evaluation of evidence, nature and danger of offense to the society is not correct, the perception of legal provisions is not uniform, even contradictory. The implementation of inspection, scientific research, seminars and learning experiences of some Military Courts is still limited and not paid adequate attention, a number of research contents is not associated with trial in practice. The implementation of inspection, supervision and dealing with criminal cases of the leaders of Military Courts sometimes has not yet taken regularly and promptly, they have not detected limitations, mistakes, obstacles so as to have guidelines and draw experiences in time for subsequent cases. Chapter 4 REQUIREMENTS AND SOLUTIONS TO IMPROVE THE QUALITY OF IMPOSING PENALITES 4.1. Requirements of improving the quality of imposing penalties 4.1.1. Building a socialist rule-of-law state and protecting human rights In order for the PC to fulfill its mission to the society, the Court must do well its role in the trial. The imposition of right penalty will make an important contribution to completing mission of the PC and principles of socialist legislation are always strictly adhered to. Ensuring human rights in proceedings, especially in imposing penalties on offenders of the Court needs to be paid special attention. The Court’s imposition of punishment must ensure the correctness, reasonableness and feasibleness in practice. The declared sentences must be consistent with education and reform of offenders, combining harmoniously and closely among penalties, focusing on tolerance, persuasive education, and covert offenders, and always upholding human rights in all circumstances. 4.1.2. Judicial reform In recent years, the situation of law violations, crimes and disputes have occurred seriously and complicated developments, the judicial quality has not reached the people’s requirements, there are still many cases of missing crimes, innocent people