>>Penalties in the criminal law
Pham Diem
State and Law Institute of Vietnam
Additional penalties are those not applied independently but in addition to principal penalties with a view to supporting the latter in achieving the punitive goals. A specific crime is liable to only one principal penalty but to one or more than one additional penalty.
Like principal penalties, additional penalties are the State’s coercive measures prescribed in criminal law and applied only by courts to offenders as the State’s condemnation against such offenders and their criminal acts.
Though applied only in addition to principal penalties, they contribute to the elimination of the possibility of committing new crimes by, as well as the rehabilitation and education of, condemned persons, helping them reintegrate into the community after completely serving their principal penalties. The close and rational coordination between additional and principal penalties will raise the effectiveness of coercion, education, punishment and reform, helping principal penalties be resolutely enforced for the purposes of specific and general prevention and supporting the courts in realizing the principle of individualization of penal liability and penalty to ensure social justice and legality.
In the 1985 Penal Code, additional penalties were not determined in every article on specific crimes like principal penalties, but in every chapter of its Part on Crimes for application to offenses prescribed in that chapter. Yet, due to the expansion and concretization of their application, additional penalties in the 1999 Penal Code are prescribed mostly as optional measures in separate clauses of 146 out of 263 articles on specific crimes, thus leaving the courts more room for consideration and application based on specific circumstances of criminal cases as well as characteristics of offenses.
Under Vietnam’s criminal law, additional penalties include:
(i) Ban from holding certain posts, practicing certain occupations or doing certain jobs
This additional penalty will apply when the court deems that if the condemned persons are let to continue holding certain posts, practicing certain occupations or doing certain jobs after completely serving their penalties being imprisonment or non-custodial reform, etc., they may cause harm to society. Apart from its effect of punishment, rehabilitation and education of offenders, it is also a preventive measure to restrict the condemned persons’ activities in given domains for given periods of time and to deprive them of the social conditions for commission of new crimes while enhancing the effect of the principal penalty already applied to them.
This penalty applies only to specific crimes prescribed by law and to offenders involved in certain posts, occupations or jobs. The current Penal Code provides for the application of this additional penalty in 127 articles on specific crimes.
The ban may last from one to five years, counting from the date the condemned person completely serves his imprisonment or non-custodial reform or from the date the judgment stating the application of other principal penalties, such as warning and fine, takes effect. In their judgments, courts must pinpoint the posts, occupations or jobs shut down to offenders and for how long. Such judgments must be notified to state bodies or social organizations that manage the condemned persons.
(ii) Ban from residence
According to Article 37 of the current Penal Code, ban from residence means forcing persons sentenced to imprisonment not to take temporary or permanent residence in certain localities.
This penalty is applicable only in addition to the penalty of termed imprisonment but not other principal penalties such as warning, fine and non-custodial reform. It is strictly severe as it deprives the condemned persons of the freedom to reside in certain localities for a given period of time with a view to preventing them from returning to those localities to commit new crimes thanks to favorable local conditions, their good knowledge of the areas or their established social relations.
The Penal Code provides for the application of this additional penalty in 25 articles on such specific crimes as infringing upon national security, plundering property, women trafficking, etc.
The residence ban duration ranges from one to five years, counting from the date the imprisonment penalty is completely served.
As required by law, persons liable to residence ban has the following obligations:
- Not to reside in areas banned from their residence.
- To report themselves to the commune-level People’s Committees of the localities where they come to reside.
- To strictly observe state laws and local administrations’ regulations.
They also enjoy the following rights:
- For plausible reasons, to return to localities banned to them or their native places where their relatives or families reside for not more than five days each time, if so consented by the commune-level People’s Committees of such localities.
- To propose the commune-level People’s Committees of the localities where they are residing to carry out procedures to propose competent bodies to consider and exempt the remaining ban duration, if they satisfy certain conditions.
- To select residence places other than those banned from their residence as provided for by law.
(iii) Probation
Probation, as defined in Article 38 of the current Penal Code, means “forcing the persons sentenced to imprisonment” for infringements upon national security, dangerous recidivism or other crimes prescribed by law “to reside, earn their living and reform themselves in certain localities for one to five years under the supervision and education of local administrations and people.”
As compared to residence ban, this penalty is harsher as it restricts the condemned persons’ rights to residence freedom to a higher extent. They are forced to reside in certain localities, usually their places of birth or residence. They are also deprived of a number of civic rights, including the rights to candidacy and election, the right to work in state agencies, and the right to render service in the people’s armed forces.
Furthermore, in the probation period, the condemned persons are also banned from practicing certain occupations or doing certain jobs to be decided by courts, based on each specific case and the requirements of reforming and educating the convicted persons.
Probation is defined in 25 articles of the Penal Code as a measure optional to the residence ban penalty. It is also applied compulsorily or optionally to other additional penalties to a number of specific crimes.
According to law, probationers, after completely serving their imprisonment, must return to the probation localities to earn their living, regularly report themselves to local People’s Committees, submit to local management, supervision and education and not to leave the probation places without permission. Meanwhile, they are entitled to live with their families in the probation places, select proper occupations or jobs, except for those banned by law, freely travel within the probation localities, leave the probation localities for a given period of time (not more than five days each time) for plausible reasons, if so permitted by competent bodies. Probationers who have served half of their probation duration and make progress may be exempt from the remaining probation duration.
(iv) Deprivation of certain civic rights
This additional penalty is of political nature, disallowing condemned persons to enjoy a number of important political rights of citizens.
Under Article 39 of the Penal Code, this penalty will apply to Vietnamese citizens sentenced to imprisonment for committing crimes against national security or other crimes prescribed by law. They shall or may be deprived of the following civic rights:
- The right to stand for election and to elect deputies to state power bodies (the National Assembly and People’s Councils).
- The right to work in state bodies and to render service in the people’s armed forces.
The civic right deprivation duration ranges from one to five years after the imprisonment penalty is completely served.
(v) Confiscation of property
As defined in Article 40 of the current Penal Code, “confiscation of property means to confiscate part or whole of the convicted persons’ property for remittance into the State’s fund.”
This is an economic measure aiming to fully recover the property acquired illicitly by offenders and to get rid of the economic conditions, which may be resorted to by offenders for recidivism, thereby to educate the condemned persons and attain the goal of general prevention.
The 1999 Penal Code applies this additional penalty more widely than the 1985 Penal Code as economic crimes have become more diverse and complicated since Vietnam shifts to a market economy with various forms of ownership and different economic sectors. However, it will apply to serious, very serious or particularly serious crimes in the domains of national security, economy and narcotics.
Property subject to confiscation are those owned by condemned persons, which they are using, lending, leasing or pledging, their bank deposits and property owned by condemned persons but registered under other persons’ names in an attempt to disperse such property.
Courts may fully or partially confiscate the property. In case all the property are to be confiscated, the convicted persons and their families will still be left with conditions to live.
(vi) Fine, when not applied as a principal penalty
Fine is prescribed by criminal law as both a principal and an additional penalty applied to each specific offense.
Under the 1985 Penal Code, fine was applied as an additional penalty to 91 crimes, which are mostly optional. Yet, under the 1999 Penal Code, fine is applied more widely as a principal penalty or an additional one in order to raise the effectiveness of the fight against economic crimes as well as some other offenses.
When deciding on the penalty of fine and specific fine levels, courts must base themselves on the nature and severity of crimes, aggravating and extenuating circumstances, personal records and property of the offenders to ensure the feasibility of this penalty and promote its efficacy.
(vii) Expulsion, when not applied as a principal penalty
Like fine, expulsion under criminal law serves as both a principal penalty and an additional one. If it is not applied as a principal penalty to offenders who do not bear the Vietnamese citizenship, it can be applied as an additional penalty. In this case, expulsion will be effected after the offenders have completely served the principal penalties.
In a nutshell, additional penalties under Vietnam’s criminal law have been constantly improved in order to increase the effectiveness of the system of penalties and to suit the crime fighting and prevention situation.-