Thai Chi Binh, LL.M.
People’s Court of Chau Doc town,
An Giang province
In addition to the circumstances extenuating the penal liability listed in Clause 1, Article 46 of the 2009 Penal Code (the Code), Clause 2 of the same Article stipulates “When deciding penalties, the court may also consider other circumstances as extenuating, but must clearly state them in the judgment.” This provision emphasizes the importance of analysis and justification by the court of circumstances other than the listed ones which they want to use to extenuate the penal liability and requires the court to clearly explain them in its judgment.
The Code also prescribes some other extenuating circumstances in its Articles 17, 18, 19, 25, 57, 58, 59 and 69 including: preparation for crime commission; incomplete commission of a crime; voluntary termination of unfinished crimes; due to a change of situation, the act of criminal offense or the offender is no longer dangerous to the society; the offender has recorded a great merit to the society; the offender is too old and weak or suffering a serious illness and no longer dangerous to the society; the offender has made great progress while serving his/her sentence; and the offender is a minor.
Point c, Section 5 of Resolution No. 01/2000/NQ-HDTP of August 4, 2000, of the Supreme People’s Court’s Judges’ Council (Resolution 01/2000), guiding the application of a number of provisions in the General Part of the Code, specifies some other extenuating circumstances mentioned in Clause 2, Article 46 of the Code as follows:
“- Spouses, blood parents, children or siblings of defendants have done merits to the nation or recorded outstanding achievements and have been conferred by the State one of the following honorable titles: labor hero, armed forces hero, Vietnamese heroine mother, people’s artist, eminent artist, people’s teacher, eminent teacher, people’s physician, eminent physician or other noble titles prescribed by the State;
- Defendants are war invalids or have their spouses, parents, children (birth or adopted) or blood siblings being martyrs;
- Defendants are disabled people suffering injuries caused by an occupational or work accident at the level of 31 percent or higher;
- Victims are also at fault;
- Damage is caused by a third party;
- Families of defendants remedy or compensate for damage on behalf of defendants;
- Victims or their lawful representatives ask for commutation of penalties for defendants in case damage is caused only to the health of victims or to property;
- Defendants have committed crimes to perform unexpected work, such as combating storms and floods or in case of emergency.
Depending on specific cases and specific situations of offenders, other circumstances may be considered as extenuating circumstances but must be clearly stated in the judgments.”
We are of opinion that the court, during trial, may base itself on the specific case and situation of the offender to consider any possible circumstance as extenuating regardless of whether such circumstance is specified or derives from those specified at Point c, Section 5 of Resolution 01/2000 because the provisions in Clause 2, Article 46 of the Code and at the end of Point c, Section 5 of Resolution 01/2000 are open.Two main defendants in last year’s corruption case involving Agribank Leasing Company 2 were sentenced to death__Photo: Hoang Hai/VNATwo main defendants in last year’s corruption case involving Agribank Leasing Company 2 were sentenced to death__Photo: Hoang Hai/VNA
Application of extenuating circumstances in practice
In practice, courts have applied the above open provisions on extenuating circumstances at variance among themselves, as follows:
First, courts have often widened the range of persons eligible for, and scope and conditions of, application of extenuating circumstances. Some courts have even considered merits done to the nation by defendants’ grand parents, grand children or parents-in-law as an extenuating circumstance.
The lack of interpretation of “other noble titles prescribed by the State” mentioned in the first item, Point c, Section 5 of Resolution 01/2000 has also resulted in a wider range of persons eligible for penal liability extenuation, especially veterans in the national salvation and anti-US resistance wars.
Besides, the circumstances specified in the third, sixth and seventh items of Point c, Section 5 of Resolution 01/2000, are not specific and fair. For example, the third item recognizes only the case in which defendants are disabled people suffering injuries caused by an occupational or work accident at the level of 31 percent or higher as an extenuating circumstance. This is unfair to disabled defendants suffering injuries caused by other types of accident, fire or natural disasters. The cause of disability should not be a sign for considering extenuating the penal liability for defendants. In fact, many courts have considered the circumstance where offenders are persons with disabilities, caused by whatever reasons, as an extenuating circumstance.
Second, some courts have automatically extenuated the penal liability under Clause 2, Article 46 of the Code for defendants who fail to fully satisfy all the conditions for the circumstances specified in Clause 1. For example, a court extenuated the penal liability of a defendant who satisfied only one of the two conditions for the circumstance “committing the crime for the first time in a less serious case” (Point h). The two conditions here are “committing the offense for the first time” and “in a serious case”.
Third, some extenuating circumstances under Clause 2, Article 46 of the Code have been applied as conditional ones when all conditions prescribed for particular cases or offenders are not met. In other words, in a specific case some circumstances would no longer be extenuating ones without certain conditions. For example, the circumstance that the offender and the victim have the family relation may only be applied as an extenuating one if the former has committed the crime unintentionally or spontaneously under objective provocation.
Fourth, many courts have considered “other” circumstances, such as assets acquired through crimes have been recovered, offenders have stable jobs and bailment or good personal background without previous convictions, offenders are sole bread winners in their families, etc., as extenuating ones based on the guidance at the end of Point c, Section 5 of Resolution No. 01/2000 without making practical assessments or basing themselves on the prescribed grounds for penal liability determination.
In our opinion, the main reason for the above practices is the ambiguity of the open provisions which allow courts to consider, determine and apply extenuating circumstances at their discretion, though they are also required to base themselves on specific cases as well as specific situations of offenders and clearly state applied circumstances in their judgments.
Another important reason lies in the negligible difference in extenuative effect between those specified in Clause 1, Article 46 of the Code and those subject to consideration by courts as a ground for deciding on penalties under Clause 2 of the same Article. This is because any of them can serve as a ground for the defendant to be entitled to suspended sentence under Article 60 or for the court to consider and decide on penalties under Article 45 or to decide to impose the penalty of caution under Article 29 of the Code. In fact, though all circumstances can be classified as (i) those with the significance of mitigating the danger of a crime to the society; (ii) those showing the ability of offenders to transform themselves; or (iii) those showing special situations of offenders who deserve tolerance, there is no specific guidance on distinctive characteristics of a circumstance to be considered as extenuating and classified into one of the above three groups.
The only significant difference between the extenuating circumstances specified in Clause 1, Article 46 of the Code and those subject to consideration by courts under Clause 2 is that only those specified in Clause 1 can be applied by the court to decide on a lighter penalty (below the lowest level of the prescribed penalty range) for a crime.
The variance among courts in considering and applying extenuating circumstances under Clause 2, Article 46 of the Code is also attributable to poor expertise or personal motives of procedure-conducting persons, especially judges, and inadequate supervision and guidance by central judicial agencies.
Toward uniform application of extenuating circumstances
To further guide the application of extenuating circumstances under Clause 2, Article 46 of the Code, we suggest addition to Section 5 of Resolution 01/2000 of specific criteria for a circumstance to be considered as extenuating.
First, any expansion of the range of subjects eligible for, scope of or conditions for, application of extenuating circumstances must meet the prescribed criteria and ensure the extenuative effect of applied circumstances. For example, in Section 2 of Official Letter No. 148/2002/KHXX of September 30, 2002, guiding Articles 46 and 47 of the Penal Code, regarding expansion of the first item, Point c, Section 5 of Resolution 01/2000 based on the open provision at the end of such Point, the Supreme People’s Court accepted the circumstance that “the defendant was nurtured as a child by his maternal grandmother who is a Vietnamese heroine mother and is the only alive relative of hers or the defendant whose father or mother has been awarded many certificates of merit for outstanding achievements in work....” as an extenuating circumstance under Clause 2, Article 46 of the Code, provided such is specified in the judgment.
Second, in order to be considered an extenuating circumstance, any circumstance not specified in the eight items of Point c, Section 5 of Resolution 01/2000 must (i) mitigate the severity of the crime, (ii) show the special personal background of the offender, or (iii) show the ability of the offender to transform himself into a good citizen. For example, as guided by the Supreme People’s Court in Section 7, Part I of Official Letter No. 81/2002/TANDTC of June 10, 2002, a person who has committed a crime, which is known to another person, and knows that he cannot go away unpunished then shows up at a competent agency for being handled under law may be regarded as giving himself up and this circumstance can be considered as extenuating.
In addition to law improvements, regular training for judges in the entire court system and timely supervision and assessment by the Supreme People’s Court and provincial-level people’s courts of the application of extenuating circumstances should be intensified to help judges more uniformly understand and apply the extenuating circumstances and prevent the improper handing down of caution or suspended sentence.-
