The Supreme People's Court of Vietnam: Benchbook Online

Main tasks and practical skills:

6.2.1.1. Offenders have prevented and/or reduced the harm caused by their offenses (Point a of Item 1 of Article 46 of the Penal Code)

• «Have prevented the harm caused by their offences» means that the offences have been committed, and the offenders themselves or in the presence of an objective influence, within their ability, have prevented the harm of the offences from occuring.
• «Have reduced the harm caused by their offences» means that the offences have been committed, and the offenders themselves or in the presence of an objective influence, within their ability, have prevented the seriousness of the harm of the offences.
• Extent of mitigating elements  depends on behaviour of offenders (by themselves or influenced or compelled by others, etc.); to which extent offences have been prevented or reduced, etc.
• Under a specific case, the Judge should distinguish «harm» from «damage» in order to determine and apply in a proper manner particular facts of extenuation of criminal liability.

6.2.1.2. Offenders volunteer to repair, compensate for the damage or overcome the consequences (Point b of Item 1 of Article 46 of the Penal Code)

• This is a case where the offence has resulted in damage and consequences.
  Offenders must volunteer (not being compelled or coerced) to repair, compensate for the damage or overcome the consequences. It can be considered as voluntary if the offender, who has been influenced or advised by others or requested by the person suffering from the damage, repairs, compensates for the damage or overcomes the consequences.
• «Repair» means to put something that is damaged by the offence into good condition.
• «Compensate» means to compensate in the form of assets for the damage caused by the offence.
• «Overcome the consequences» means to overcome the damage caused by the offence which cannot be repaired or compensated by assets.
• In particular cases, the Judge may apply the fact of extenuation that is «the offender voluntarily repairs, compensate for the damage or overcome the consequences» as provided in Section 1 of Resolution No. 01/2006/NQ-HDTP dated 12 May 2006.
• Extent of extenuation depends on the voluntariness; results of the repairment or recovery of damage; amount of compensation, etc.

6.2.1.3. Offences are committed in cases where it is beyond the limit of legitimate defense (Point c of Item 1 of Article 46 of the Penal Code)

• «Offences are committed in cases where it is beyond the limit of legitimate defense» means the acts of fighting back in a manner incompatible with the nature and the extent of danger posed to the society by the act of infringement (Article 15 of the Penal Code).

6.2.1.4. Offences are committed in cases where it is beyond requirements of an urgent situation (Point d of Item 1 of Article 46 of the Penal Code)

• «Offences are committed in cases where it is beyond requirements of an urgent situation» means circumstances in which persons who, because of wanting to ward off a danger practically jeopardizing the interests of the State and/or organizations, the legitimate rights and interests of their own or other persons and having no other alternatives, have to cause damage smaller than the damage to be warded off (Article 16 of the Penal Code).

6.2.1.5. Offences are committed in cases where offenders are mentally incited by illegal acts of the victims or other persons (Point dd of Item 1 of Article 46 of the Penal Code)

• There must be illegal acts of the victims or other persons (these acts may be not seriously illegal). Other persons hereby mean relatives to the victims.
• Such illegal acts must have infringed upon lawful rights and interests of the offender or relatives to the offender.
• The Judge shall apply this fact when there are two conditions that is «there must be illegal acts of the victims or other persons» and « such illegal acts must have infringed upon lawful rights and interests of the offender or relatives to the offender».
• Extent of extenuation depends on who committed the illegal acts; who is the victim of such acts and seriousness of the illegal acts, etc.

6.2.1.6. Offences are committed due to particular difficulty plights not caused by themselves (Point e of Item 1 of Article 46 of the Penal Code)

• Offences are committed due to particular difficulty plights (not abusing such plights).
• Particular difficulty plights must not have been caused by offenders themselves.
• Particular difficulty plights may have been caused by natural calimities or other reasons (particular difficulty plights may have been caused by other persons).
• The Judge should apply this fact only when there are two condition that is «offences are committed due to particular difficulty plights» and «particular difficulty plights not caused by offenders themselves ».
• Extent of extenuation depends on extent of difficulty and ability of offenders to recover the damage.

6.2.1.7. Offences are committed but no damage or minor damage is caused (Point g of Item 1 of Article 46 of the Penal Code).

• «Offences are committed but no damage or minor damage is caused» means that offences have been committed but no damage has been caused, beyond subjective desire of offenders. This should be distinguished from unsuccessful commission of offences (Unsuccessful commission of offences means intentionally trying to carry out offences but unable to carry out them to the end due to reasons beyond subjective desire of offenders).
• «Minor damage is caused» means that offences have been committed but minor damage has been caused, which is lighter than what was expected by offenders and beyond their subjective desire.

6.2.1.8. Offences are committed by first time offenders and in cases of less serious crimes (Point h of Item 1 of Article 46 of the Penal Code)

• «Offences are committed by first time offenders» means that the offenders have never committed any other offences (The Judge shall not apply this fact of extenuation when offenders have committed offences and been sentenced before, and their sentence records have not been erased or they have not been sentenced but time limit for presecuting criminal liability has expired or they have not been sentenced, time limit for prosecuting criminal liability has not expired and now they are being prosecuted for criminal liability at the same time with the later offences).
• This case must be a less serious case. A less serious case includes a case where less serious offences are committed (i.e. offences bring about no big harm to the society and the maximum of the penalty bracket is not more than three years of imprisonment) and a cases where serious, very serious or particularly serious offences are committed but position and role of offenders are less serious (offent in cases of complicity).
• The Judge shall apply this fact only when there are two conditions that is “offences are committed by first time offenders” and “in cases of less serious crimes”.

6.2.1.9. Offences are committed due to threats and/or coercion by other persons (Point i of Item 1 of Article 46 of the Penal Code)

• «Threats by other persons» means that offenders are threatened by other persons to punish if offenders do not follow such other persons’ desire. This causes offenders to feel frightened of a possible catastrophe, and offenders have to commit offences in order to avoid such catastrophe.
• «Coercion by other persons» means that other persons use violence or threat to use instant violence to force offenders to commit offences.
• Extent of extenuation depends on nature, and level of threats and/or coercion by other persons and situation and conditions to avoid such threats and/or coercion.

6.2.1.10. Offences are committed due to ignorance (Point k of Item 1 of Article 46 of the Penal Code).

• «Ignorance» means not catching up with common development process.
• The Judge shall apply this fact «offences are committed due to ignorance» if only such ignorance is caused by objective reasons, such as the offenders, due to social live, have low or no knowledge of law, have no education, have no practical conditions to be aware of rights and wrongs in their life. etc.

6.2.1.11. Offenders are pregnant women (Point l of Item 1 of Article 46 of the Penal Code).

• While committing offences, offenders must be pregnant. If offenders are not pregnant at the time of committing offences, the Judge shall not apply this fact of extenuation even if offenders are pregnant at the time of the hearing. The Judge may apply only provisions of Article 35 of the Penal Code to pregnant women when hearing them. Under special circumstances, the Judge may apply fact of extenuation to a woman who is pregnant at the time of the hearing, which must be specified in the judgment and Item 2 of Article 46 of the Penal Code shall apply.
• The women must prove that they were pregnant at the time of committing offences. In cases where there is not sufficient ground for a conclusion of their pregnancy at the time of committing offences, the Judge must rely on conclusion of a medical professional body or examination conclusion.
• Extent of extenuation depends on period of pregnancy, and impact on the foetus status.

6.2.1.12. Offenders are aged persons (Point m of Item 1 of Article 46 of the Penal Code).

• «Aged persons» mean persons of not less than 70 years of age (Sub-Section 2.4 of Section 2 of Resolution No. 01/2006/NQ-HDTP).
• In some cases, although the offenders are persons of not less than 70 years of age, the Judge should not apply this fact (often with respect to sexual offences caused to women).
• Extent of extenuation depends on age, health status and the offence.

6.2.1.13. Offenders are persons suffering from illnesses that restrict their cognitive capability or the capability to control their acts (Point n of Item 1 of Article 46 of the Penal Code).

• «Offenders are persons suffering from illnesses» means that they suffer from a type of illness as provided by medical biology.
• Such illnesses must have restricted their cognitive capability or the capability to control their acts (if there is not sufficient ground for concluding, there must be a conclusion of a medical professional body or examination conclusion).
• The Judge shall apply this fact only when there are two conditions that is «offenders are persons suffering from illnesses» and «such illnesses have restricted their cognitive capability or the capability to control their acts ».
• Extent of extenuation depends on status of the illnesses, extent of restriction of their cognitive capability or the capability to control their acts.

6.2.1.14. Offenders give themselves up (Point o of Item 1 of Article 46 of the Penal Code)

• «Offenders give themselves up» means that offenders themselves confess their offences and give testimony of their offences, while no one detects their offences.
• Any one who is arrested and/or detected for a particular offence confessing their offences and giving testimony of their offences shall be considered as giving themselves up with respect to which offences they have confessed and given testimony of.
• «Giving themselves up» should be distinguished from «compulsorily confessing».
• «Compulsorily confessing» mean offenders have to go to a competent body to show their presence because their offences are known to some one and offenders cannot avoid. In case of compulsorily confessing, the Judge shall apply only Item 2 of Article 46 of the Penal Code when considering to extenuate criminal liability for offenders.

6.2.1.15. Offenders make honest declarations and reports and show their repentance (Point p of Item 1 of Article 46 of the Penal Code).

• Making honest declarations and reports means that offenders, during investigation, prosecution or hearing, make honest and sufficient testimonies in relation to offences committed by themselves.
• Showing repentance means that after committing offences, offenders show their repentance with respect to their offences not only by their words but also by their actions in order to prove that they really want to become a good person and recover losses and damages caused by themselves.
• Extent of extenuation depends on honesty of their declarations and reports in which point of time of the proceedings and meaning of such honesty in resolving the case; it also depends on level of repentance of offenders, and their actions to prove their repentance.

6.2.1.16. Offenders who actively help responsible bodies detect and investigate the offences (Point q of Item 1 of Article 46 of the Penal Code).

• Actively helping responsible bodies detect and investigate offences means having a active behaviour to help in order to make quicker change in detecting and investigating offences.
• Actively helping responsible bodies detect and investigate offences can be showed by the provision of information, documents and evidence which are useful for detecting and investigating offences; by telling where exhibits are kept, where other offenders are hiding; by the provision of information on other offences or other offenders unrelated to themselves, ect.
• Extent of extenuation depends on the activeness, value of information, documents and evidence provided by offenders; efficiency of their helping.

6.2.1.17. The offenders have redeemed their faults with achievements (Point r of Item 1 of Article 46 of the Penal Code).

• «Offenders have redeemed their faults with achievements» means that from the time when offences are committed to the time when offenders are heard (at first instance, appellate level, under procedure for judicial review or new trial), offenders not only show repentance and actively support relevant bodies to detect and/or discover offences committed by themselves, but also take actions to help competent agencies to detect and prevent other offences, attend in detecting offences or arresting other offenders, take actions which show their sacrify for the purpose of State interests, collective’s interests, lawful rights and interests of other persons, etc., praised or certified by competent agencies (Section 5 of Resolution No. 01/2000/NQ-HDTP).
• Extent of extenuation depend on such achievements and point of time of the proceedings.

6.2.1.18. The offenders are persons who have recorded outstanding achievements in production, combat, study or work (Point s of Item 1 of Article 46 of the Penal Code).

• «Persons who have recorded outstanding achievements in production, combat, study or work» mean persons who have been granted with decorations, medals, praise certificates, innovative labour certificates, or have had a valuable invention or discovery, or have been recognized as emulation soldiers for many years (Section 5 of Resolution No. 01/2000/NQ-HDTP).
• These outstanding achievements are often made before offenders commit offences.
• Extent of extenuation depends on the achievements; form of praise; value of inventions or discoveries; recognized emulation titles.

6.2.1.19. In addition to facts of extenuation as provided in Item 1, the Court can consider other facts as facts of extenuation:

• The Court must specify in the judgment.
• The Judge shall apply only Item 2 of Article 46 of the Penal Code (extent of extenuation is lower than facts as provided in Item 1 of Article 46 of the Penal Code).
• Facts considered as facts of extenuation are provided in Point c of Section 5 of Resolution No. 01/2000/NQ-HDTP, as follows:
  - Wife, husband, mother, father, children, sister and brother younger and older of the accused are persons having great contribution to the State or having great achievement and being granted by the State with one of the following honourable titles: labour hero, armed force’s hero, heroic Vietnamese mother, people’s artist, excellent artist, people’s teacher, excellent teacher, people’s doctor or excellent doctor, or other titles as provided by the State;
  - The accused are disabled soldiers or have a relative, i.e. wife, husband, mother, father, children or adopted children, sister, brother older or younger, as a revolutionary martyr;
  - The accused are persons suffering from disability due to labour or occupational accidents, with a disability percentage of not less than 31%;
  - The victims are also partly wrong;
  - Damage is caused by third party;
  - Family of the accused repairs and compensates for damage on behalf of the accused;
  - The victims or their legal representative asks for an extenuation of penalty for the accused in cases where damage is caused to the health of victims or to assets;
  - Offences are committed in cases where offenders have to serve ugenr work, such as to fight storms or floods, emergency.
  - In addition, when hearing, depending on each particular case and situation of offenders, the Judge may consider other facts as facts of extenuation, which must be specified in the judgment.

6.2.1.20. Note that: “Facts used to sentence or determine penalty bracket as provided by the Penal Code shall not be considered as facts of extenuation in the course of sentencing (Item 3 of Article 46 of the Penal Code).