Judicial measures in vietnamese criminal law - Theoretical and practical issues

Firstly, the problems mentioned in Clause 1, Article 47 confiscation of

tools and means of the offenders or of other persons who are at fault in letting

their properties be used as tools and means for offenses, but the property has

been sold or is not recoverable; problems related to the identification of objects

and money due to crimes or from the sale, purchase or exchange of such things,

with regard to problems of objects that the state banned from storage and

circulation at Point b, Clause 1, Article 47.

Secondly, restrictions on how to understand and apply the law. In current

practice, the confiscation of tools and means used in the commission of crimes

is still inconsistent between the procedure-conducting agencies due to different

understandings about the tools and means used for the commission of crimes.

Thirdly, the limitations of the procedure proceedings. Practices handling

crimes, handling material evidence show that, in some cases, the measures of

confiscation of objects and money directly related to crimes should be applied

but the courts do not.

2.2.2.2. For judicial measures returning properties, repairing or compensating

damages, forcing to publicly apologize

Firstly, problems about the provisions of law. There are viewpoints that

the measures of returning property, repairing or compensating for damage are

measures prescribed by the Penal Code but belong to the content of civil

liability because they originate from the obligation to pay for damages caused

by criminal acts

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These entities need to be prohibited before they are at risk of committing crimes by restricting a number of special rights (such as disarming, confiscation of property). This is considered a security measure because the purpose of social protection comes from the nature and dangerous threat of these people. Based on the concept of other criminal coercive measures, foreign criminal law science also uses different terms to name these measures such as “security measures” (Greece, Spain, Italy, Columbia, Mexico, etc.), “measures for improvement and security” (Germany); “Sanctions for criminals” (Poland); The Russian Criminal Code called “other criminal legal measures”. Meanwhile, it is called “Judicial Measures” in legal books and newspapers in our country today. The fundamental difference of judicial measures between foreign and Vietnamese concepts is that foreign scientists emphasize the precaution of these measures, mainly focusing on those who commit dangerous acts to society apart from criminals and these measures are considered as security measures rather than penalties. As the result, in the Criminal Law of some countries, measures play the role as security measures and penalties. Meanwhile, Vietnamese scientists’concepts mostly focus on the impact on the rights and interests of people who perform dangerous acts for society are applied these measures. In other words, this means that judicial measures are also supportive for penalties for the purpose of punishing entities that commit dangerous acts to society. The application of judicial measures is still able to ensure the reformation and education of offenders and prevention from crimes. On the basis of analyzing scientific concepts, the dissertation figures out judicial measures as follows: Judicial measures are State’s coercive measures prescribed in criminal law, imposed by competent authorities in the stages of the proceeding process, in order to overcome the damages of criminals, protect the legitimate rights and interests of individuals, agencies and organizations, contributing to educating offenders and preventing from crimes as well as violating law. 8 1.1.1.2. Characteristics of judicial measures Firstly, judicial measures are State’s coercive measures prescribed in criminal law Secondly, judicial measures are suited by competent authorities during the proceedings and execution. Thirdly, judicial measures are applied to individuals committing crimes, corporate legal entities committing crimes and those showing dangerous acts to society in case of incapability of criminal liability (it is not considered crime). Fourthly, judicial measures are applied independently or with penalties. Fifthly, judicial measures may or may not be associated with criminal liability. Sixthly, judicial measures are preventive. This is an indispensable characteristic of the criminal coercive measures to improve the system of criminal remedies for entities committing crimes. Seventhly, judicial measures contribute to overcome damages caused by offenders, those committing dangerous acts to society in case of incapability of criminal liability, corporate legal entities committing crimes, protecting rights and interests of individuals, agencies and organizations, and simultaneously reforming and educating offenders. 1.1.2. The role of judicial measures First, judicial measures contribute to diversify the handling measures for individuals and corporate legal entities committing criminal offences in the system of criminal coercive measures. Second, judicial measures contribute to support penalties to achieve the purpose of handling crimes. Third, judicial measures contribute to overcome damages caused by criminals, protect the legal rights and interests of individuals, organizations and other entities in the society. 1.1.3. Classification of judicial measures - Based on entities of judicial measures, it can be classified into groups: the group of judicial measures affecting the rights of objects, money, property, the group of measures affecting the rights of freedom and human honor. - Based on entities applied judicial measures, it can be classified into groups: the group of judicial measures for individuals, the group of judicial measures for corporate legal entities, the group of judicial measures for both individuals and corporate legal entities. - Based on the nature of the behavior, it can be classified into groups: the group of judicial measures for dangerous behaviors for society without accusing crimes, the group of judicial measures for dangerous behaviors for society with accusing crimes. - Based on the applied entities, it can be divided into groups: the group of judicial measures for proceedings-conducting agencies applied during the proceedings, the group of judicial measures applied by the Court. 9 - Based on the role of judicial measures, it can be classified into groups: the group of judicial measures supporting penalties, the group of judicial measures being independent of penalties. 1.1.4. The distinction of judicial measures from penalties 1.1.4.1. The similarities between judicial measures and penalties Penalties and judicial measures are prescribed in the criminal code; and both are the State’s criminal coercive measures applied to entities that represent danger to the society would be considered criminals; the application of penalties or judicial measures must comply with the principles of legislation, the principles of fairness, respect for human dignity and honor; aiming at preventing entities from committing dangerous acts to society; depending on the circumstance and time for lawmakers to stipulate which measures are penalties and judicial measures. 1.1.4.2. The difference between judicial measures and penalties The dissertation has pointed out different criteria to distinguish between judicial measures and penalties including: foundation for application, subjects being applied, method of regulation and application, basis of application, authority of application and purpose. Accordingly, the dissertation evaluates and clarifies the indispensable role of judicial measures in the system of criminal coercive measures. 1.2. The historical overview of formation and development of judicial measures in Vietnam's criminal law before the 2015 Criminal Code 1.2.1. The period from the feudalism to the August Revolution of 1945 The criminal law in the feudalism had regulations on other criminal prosecution in addition to the penalties containing judicial measures; however, legislators at that time did not indicate a specific term and how to correctly understand judicial measures as they do today. These measures are meant as supportive measures in necessary cases, even indispensable in the application of dealing with some crimes. 1.2.2. The period from the August Revolution of 1945 to before the promulgation of the 1985 Criminal Code It can be seen that apart from penalties, the confiscation of objects and money directly related to crimes was the earliest and the most applied in the criminal law of our country. In addition, criminal documents had no clear distinctions among measures, and defined general regulations, without specifying contents, scopes, conditions and duration for each measure. Those limitations particularly affected on the effectiveness of criminal liability in reality. But it is worth acknowledging that the regulations of judicial measures during this period were precious experiences informing Vietnam’s criminal law in 1985. 10 1.2.3. The period of the promulgation of the Criminal Codes from 1985 to before 1999 Obviously, Vietnam's criminal law remarkably changed through the first promulgation of a complete Criminal Code. With the provisions of this Code, judicial measures were more complete basing on the inheritance of the provisions on judicial measures mentioned in legal documents. Lawmakers determined that judicial measures had an indispensable position and role in the Criminal Code, and emphasized the importance and significance of the application of judicial measures to deal with crimes, contributing to prevent from crimes effectively. 1.2.4. The period of the promulgation of the Criminal Codes between 1999 and before 2015 The 1999 Criminal Code (later amended in 1999 and supplemented in 2009) was resulted from the second codification process of criminal law on the basis of inheriting the system of principles and regulations of the 1985 Criminal Code, simultaneously the provisions of the Criminal Code became appropriate thanks to the amendment, supplementation, improvement and development, of which the provisions on judicial measures were more complete and more clearly expressed their nature and role. 1.3. The overview of criminal laws of some countries on judicial measures 1.3.1. Provisions on judicial measures in Sweden’s criminal law Sweden’s Criminal law defines judicial measures in chapter 36 under the name Other Special Legal Effects of Crime including: confiscation of property, fine of enterprises, compensation for damages and other legal measures as prescribed by law. Although there is no definition of other special measures, Sweden’s Criminal Code affirmed that these special legal measures could be applied simultaneously with penalties. 1.3.2. Provisions on judicial measures in France’s criminal law France’s Criminal law points out a system of criminal coercive measures apart from penalties, known as security measures. Among the security measures that apply to offenders, there are some measures construed as either primary or additional penalties within the penalty system. Specifically, the security measures apply to juvenile offenders including: mandatory supervision, mandatory attendance at a correctional institution; to offenders over 18 years old including: expulsion, prohibition of accommodation in the territory of France. The classification of penalties and security measures only identified the different purposes of these measures, but the nature and security measures could still be the main or additional penalties in the system of penalties. 1.3.3. Provisions on judicial measures in German Federation’s criminal law Germany’s Criminal Code defines judicial measures in chapter three, title 6under the name Measures of reform and prevention including: compulsory 11 placement in a psychiatric hospital, compulsory placement in an addiction treatment facility, compulsory placement in preventive detention, mandatory supervision of conduct, disqualification from driving and disqualification from exercising a profession. It can be seen that Measures of reform and prevention prescribed by Germany’s Criminal Code are not under the penalty system nor are they considered as an accompanying consequence as the criminal law in some other countries in the world, they are separate from criminal prosecution system aiming to improve the status of the person being applied as well as to ensure social safety. 1.3.4. Provisions on judicial measures in Russian Federation’s criminal law Russian Federation’s Criminal Code stipulates judicial measure at Section VI, chapter 15 and chapter 15-1 under the name Other Criminal Legal Measures, including: compulsory measures of medical treatment, confiscation of property and compensation for damages, compulsory education. There is no separate part on judicial measures or any provisions indicating the purpose and meaning of the application of these measures in Russian Federation’s Criminal Code. However, in each specific measure, law makers clearly apply the method, target and duration. 1.3.5. Provisions on judicial measures in China’s criminal law China’s Criminal Code incompletely defines judicial measures including: compensation for losses, mandatory attendance at an educational institution, compulsory medical treatment, warning, written self-criticism. These measures which appear in China’s Code also figures out that Chinese lawmakers have noted the existence of other criminal coercive measures in addition to penalties. On the basis of researching judicial measures in the criminal law of other countries, the dissertation has pointed out the similarities and differences between Vietnam's criminal law and the criminal law of the countries mentioned above. Thereby, the dissertation also recommends selected and studied points for the completion of judicial measures in the criminal law. Conclusion of chapter 1 In summary, the definitions of judicial measures are constructed from scientific bases, from experiences on judicial measures prescribed by foreign countries, from the analysis and evaluation on forming and developing judicial measure institutions for years, accepted and reasonable points would be taken into consideration of current criminal law on judicial measures. The correctness and reasonability of scientific theories will once again be confirmed and clarified in relation to the current Vietnam’s criminal law. In addition, the research results of this chapter will become the theoretical foundation for understanding and assessing practical problems of judicial measures. Finally, the points mentioned in this chapter would be recommendations for the completion of Vietnam's criminal law in the final chapter of the dissertation. 12 Chapter 2. JUDICIAL MEASURES UNDER THE PROVISIONS OF THE CURRENT VIETNAMESE CRIMINAL LAW AND PRACTICE OF APPLICATION 2.1. Current Vietnamese criminal law provisions on judicial measures 2.1.1. Provisions on confiscation of money and items directly related to the crime Confiscation of money and items directly related to the crime is interpreted as confiscation to supplement the state budget, however, if the confiscated objects and money are no longer valid or used, they must be destroyed. In terms of applicable conditions, confiscation of money and items directly related to the crime applied to all types of crimes and to all criminals. In terms of content, confiscation of money and items directly related to the crime is deprivation of objects, money of offenders or stripping of objects and money that offenders have earned from crimes to pay into the state budget or for disposal if no longer valid. The purpose of this measure is to prevent and ensure the deterrence of crime, stability and social order. 2.1.2. Provisions on returning, repairing of property or provision of compensation; offering of public apology In terms of applicable conditions, this measure can be applied to all types of crimes and all subjects. In terms of content, this measure force criminal subjects to return properties they have illegally appropriated to their lawful owners or managers. In cases the criminal subjects have caused the above properties to be damaged, they must repair or compensate for the damage or must still apologize publicly. In terms of purpose, this measure is applied to support the penalty, in order to restore the original state of ownership when the crime has not occurred or to remedy the consequences caused by the criminal act, to restore the honor and dignity that the offender committed with the victim. 2.1.3. Provisions on mandatory disease treatment Mandatory disease treatment is forcing a person who, during or after performing dangerous acts for the society but before being convicted or is serving a penalty, loses his/her awareness or control of his/her acts, must go to specialized treatment facilities for the purpose of eliminating conditions that may lead to new offenses in the future due to their illness. In terms of applicable conditions, mandatory disease treatment is only applied to people who commit dangerous behaviors for the society that suffer from mental illness leading to the loss of cognitive ability or the ability to control behaviors. For the purpose, this measure is intended to prevent the possibility of harming social order and safety of people with mental illness or other illnesses that cause mental disorders as well as eliminate the possibility of leading to dangerous behavior for society. 13 2.1.4. Provisions on education in correctional institutions to juvenile ofenders For the condition, the education in correctional institutions is the measure applied to juvenile offenders due to the seriousness of the offenses, his / her identity and the living environment. It cannot guarantee education and amelioration but it must place the person in a strictly disciplined institution instead of imposing penalties on them. Concerning the content, education in correctional institutions limits the freedom of to juvenile offenders and train in a strictly disciplined environment, fully comply with the rules, regulations, studies and practice under the strict supervision of correctional institutions for a certain period of time from 01 year to 02 years. For the purpose, these measures are applied to ensure the deterrence and prevention. 2.1.5. Provisions on judicial measures taken against a corporate legal entity committing a crime include 2.1.5.1. Restoration of original state Restoration of original state is considered to be a very effective support for the punishment. If penalties are only considered as an effective legal tool to punish offenses committed by an individual in the name of legal entities, then it is the responsibility of the legal entity to restore the original state for material damage caused by an individual, organizations or a society. 2.1.5.2. Implementation of other measures for mitigation and prevention of consequences. Remedy may be interpreted as the legal entity committing a crime by using measures prescribed by law to limit or restore a part of the original state caused by its acts. According to the above provisions, an act may be applied many remedies in addition to other sanctions. Law-makers formulate the contents of measures to force the remedial and prevent from consequences continously happening related to the environment, goods, products and articles that are the subjects of the impact of these criminal groups. 2.2. Practical application of the provisions of the law on judicial measures in Vietnam from 2008 to 2017 2.2.1. Situation of applying judicial measures in Vietnam from 2008 to 2017 2.2.2.1. The situation of applying judicial measures to confiscate objects and money directly related to crimes The application of measures of confiscation of objects and money directly related to crimes focused on the following criminal groups: crimes of offences against the person and repulation offences against rights of property drug- related offences against public order and public safety. These crimes are both affected by property and at the same time, offenders often use tools and means to support crimes. Therefore, when being handled criminally, the competent authorities will temporarily seize them to serve the process of investigation, prosecution and trial. When deciding criminal responsibility for offenders, the Court may exproprivate or destruct. If the property is owned by the other that 14 has no fault in letting the offender use it in the commission of a crime, then the property must be returned to that entity. In addition, competent authorities may impound property as custody to ensure the execution of sentences. Table 1.2: Situation of applying judicial measures to confiscate objects and money directly related to crimes Article Number of cases Applying judicial measures to confiscate objects and money directly related to crimes Ratio % Article 93 116 105 83% Article 112 30 30 100% Article 133 40 40 100% Article 135 8 8 100% Article 136 7 7 100% Article 138 60 55 91,6% Article 139 95 92 96,8% Article 140 35 30 85,7% Article 194 54 54 100% Article 250 33 30 90,9% Article 258 7 7 100% Article 278 8 0 0% Article 280 7 0 0% Total 500 458 91,6% 2.2.1.2. The situation of applying judicial measures to return properties, repair, compensate damages, and force public apology In order to evaluate how often this measure is applied in practice, the author relied on statistics of high-probability criminal groups by selecting 500 sentences at random in provinces and cities across the country within 10 years, although this is only a relative number. However, they also reflect quite fairly and honestly the situation of applying this judicial measure, because these are the criminal groups with the highest rate of court proceedings. Table 2.2: Number of cases on crimes applying judicial measures to return properties, repair, compensate damages, and force public apology Article Number of cases Applying judicial measures to return properties, repair, compensate damages, and force public apology Ratio % Article 93 116 110 94,8% Article 112 30 10 33,3% Article 133 40 38 95% 15 Article 135 8 8 100% Article 136 7 7 100% Article 138 60 55 91,6% Article 139 95 92 96,8% Article 140 35 28 80% Article 194 54 14 25,9% Article 250 33 29 87,8% Article 258 7 4 57,1% Article 278 8 8 100% Article 280 7 6 85,7% Total 500 409 81,8% 2.2.1.3. Situation of application of compulsory judicial measures for medical treatment Through the statistics of cases where offenders are subjected to compulsory medical treatment, we also realize that according to the mental forensic examination plays an important role to quickly resolve the case, but currently has not been paid attention to implement effectively and synchronously. Table 3.2: Situation of defendant applying of mandatory disease treatment at the proceedings Year (1) Total number of defendants (2) Number of detainees applying of mandatory disease treatment (3) Number of prisoners applying of mandatory disease treatment (4) Ratio % of (3)+ (4)/ (2) 2008 101,285 0 0 0 2009 96,803 40 0 0,04% 2010 89,072 79 0 0,08% 2011 105,408 50 0 0,04% 2012 117,110 62 0 0,05% 2013 117,402 47 0 0,04% 2014 116,178 123 71 0,16% 2015 106,200 88 33 0,11% 2016 101,536 116 67 0,18% 2017 95,248 61 21 0,08% Total 1,046,215 666 192 0,08% (Source: Statistics of the Supreme People's Procuracy) 16 2.2.1.4. Situation of applying judicial measures to juvenile offenders Through the research of cases of defendants applying the Court's at all levels during 10 years, it has been shown that the number of defendants applied each year is very small, even though there is any increase significantly. It can be recognized that, while the judicial mesures are important in educating and reforming juvenile offenders, giving them the opportunity to ameliorate their personalities to soon reintegrate into the community, but in fact, very few are applied. Table 4.2: Situation of juvenile offenders applied judicial measures from 2008 to 2017 Year The total number of cases with juvenile offenders Total number of defendants of juvenile offenders The number of defendants who applied measure sending to correctional institutions The number of defendants who applied the measure of education in communes, wards and towns 2008 2744 3900 1 6 2009 2722 3710 4 4 2010 2582 3418 1 2 2011 2355 3243 1 1 2012 4541 6157 13 24 2013 3979 5277 8 17 2014 3402 4476 2 3 2015 2757 3609 7 8 2016 2424 3169 6 4 2017 1877 2373 9 6 Total 29383 39332 52 75 (Source: Statistics of the Supreme People's Court) In summary, from the practical situation of the application of the judicial measures of the procedure-conducting agencies in the past 10 years in whole nation, it can be seen that, the judicial system has contributed to thoroughly handling crimes and promoting the effect of disposal of crimes together. However, the practice of applying judicial measures also shows that there are still obstacles, inadequacies in the law, shortage in the process of law applicationThese issues will be analyzed in details in the following sections. 17 2.2.2. Problems and limitations in the practice of judicial application 2.2.2.1. For judicial measures to confiscate objects and money directly related to crimes Firstly, the problems mentioned in Clause 1, Article 47 confiscation of tools and means of the offenders or of other persons who are at fault in letting their properties be used as tools and means for offenses, but the property has been sold or is not recoverable

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