DEATH PENALTY IN VIETNAM'S CRIMINAL CODE

ABSTRACT

The death penalty is the most severe punishment in the system of penalties under Vietnamese law. This is a punishment that deprives the offender of the right to life - the most basic and important human right. The article analyzes the views on the death penalty as well as the shortcomings in the provisions of Vietnamese criminal law on the death penalty, thereby proposing some recommendations for improvement.

АННОТАЦИЯ

Смертная казнь является самым суровым наказанием в системе наказаний по вьетнамскому законодательству. Это наказание, лишающее преступника права на жизнь - самого основного и важного права человека. В статье анализируются взгляды на смертную казнь, а также недостатки положений вьетнамского уголовного законодательства о смертной казни, тем самым предлагая некоторые рекомендации по улучшению.

Keywords: Penal Code; The death penalty; national security; crimes against human life; drug crimes; Vietnam.

Ключевые слова: Уголовный кодекс; Смертная казнь; национальная безопасность; преступления против человеческой жизни; преступления, связанные с наркотиками; Вьетнам.

The 2015 Penal Code has been amended and supplemented in the most complete and comprehensive manner ever, meeting practical requirements. Article 40 of the 2015 Penal Code (amended and supplemented in 2017) stipulates that the death penalty is a special penalty only applied to those who commit particularly serious crimes in one of the groups of crimes against national security, crimes against human life, drug crimes, corruption and a number of other particularly serious crimes.

“1. The death penalty is a special penalty only applied to those who commit particularly serious crimes in one of the groups of crimes against national security, crimes against human life, drug crimes, corruption and a number of other particularly serious crimes prescribed by this Code.

2. The death penalty shall not be applied to persons under 18 years of age when committing a crime, pregnant women, women raising children under 36 months of age or people aged 75 years or older when committing a crime or at trial

3. The death penalty shall not be applied to a convicted person if he/she falls into one of the following cases: a) Pregnant women or women raising children under 36 months of age; b) People aged 75 years or older; c) People sentenced to death for embezzlement or bribery who, after being sentenced, proactively returned at least three-quarters of the embezzled or bribed property and actively cooperated with the authorities in detecting, investigating and handling the crime or making great achievements.

4. In the case specified in Clause 3 of this Article or in the case where the person sentenced to death is granted clemency, the death penalty shall be converted to life imprisonment”.

According to Amnesty International, to date, 106/197 countries and territories (hereinafter referred to as countries) in the world have abolished the death penalty for all crimes; 08/197 countries have abolished the death penalty for common crimes, only prescribing the death penalty for war crimes; 28/197 countries still prescribe the death penalty in criminal law but do not apply the death penalty in practice. The Charter of Fundamental Rights of the European Union in 2000 stated: “Human dignity is inviolable. It must be respected and protected” (Article 1); “Everyone has the right to life, no one shall be sentenced to death or executed” (Article 2) [4]

The trend of most countries in the world today is to move towards abolishing the death penalty in criminal law. However, depending on different historical, cultural, economic, political, ethical and religious conditions, each country has different ways of dealing with this issue. In fact, not all countries on this list execute the death penalty every year. In Vietnam, studying the death penalty in Vietnamese criminal law as well as in world criminal law over time, the author see that this is not only a criminal legal issue but also an economic, political and social issue and is influenced by historical, cultural, religious, ethical and public opinion factors... Therefore, maintaining or abolishing the death penalty should not depend on the subjective will of the legislator but must carefully consider the above factors. Maintaining or abolishing the death penalty is not only a criminal legal issue but also a political, social, cultural, ethical, religious issue... Therefore, since the beginning of the 18th century, the world has entered a persistent and fierce debate related to the death penalty.

The author believes that the death penalty should be maintained. Because:

First, the death penalty does not violate the human right to life. Humans are the sum of social relationships, so a person is allowed to exercise his freedom within the framework of not violating the freedom of others, according to the provisions of the law. If a person violates the freedom of others, it means that they have deprived themselves of their freedom. That has been warned by the law and the consequences are inevitable. Therefore, if a person commits the act of killing another person, it means that they have traded their right to life. In this case, no one violates the right to life of the offender, but they themselves have denied their right to life. Moreover, maintaining the death penalty does not violate international law. Because the Universal Declaration of Human Rights indicates: “Everyone has the right to life, liberty and security of person” but these rights are only guaranteed on the condition that they do not in. [5] Even the International Covenant on Civil and Political Rights in 1966 fringe upon the rights to life, liberty and security of person of others does not prohibit the application of the death penalty. Article 6.2 of this Convention indicates: “In countries where the death penalty has not been abolished, the death penalty may be imposed only for the most serious crimes in accordance with the law in force at the time of the crime and not contrary to the provisions of this Convention and the Convention on the Prevention of the Crime of Genocide”. [6]  

Second, it is not correct to assume that the abolition of the death penalty reduces the crime rate. In these countries, the crime rate decreases due to certain economic, political, social conditions and the high level of legal awareness of the people, not due to the abolition of the death penalty. In other countries in general and Vietnam in particular, when there are not enough other conditions to reduce the crime situation, the death penalty still has a necessary and effective deterrent effect on crime. Because the Vietnamese economy is currently gradually transforming into a socialist-oriented market economy and on the path of international integration. The starting point of country is still an underdeveloped economy, loose social management, a legal system that is both lacking and weak, overlapping and contradictory...

Hostile forces at home and abroad still seek to sabotage the people's government and sabotage the policy of national unity. Therefore, “if the death penalty is eliminated, it will not only cause difficulties in ensuring national security and social order and safety, but also hinder the country's integration process according to the general development trend of humanity”. In addition, crimes related to drugs, murder, robbery, etc. still account for a large proportion. Therefore, the elimination of some individuals who are especially dangerous to society, according to the provisions of the law, is necessary to prevent them from committing new crimes and to deter and educate others to respect the law. In reality, some people have degraded political ideology, morality, lifestyle..., many of whom are selfish, jealous, local, loose, mean, depraved, will not hesitate to use any means, are ready to commit savage, brutal crimes or corruption and cause extremely serious consequences for society. They have an attitude of disregard for the lives and health of others; disregard for the law and the common interests of the community.

Therefore, if state do not apply the most severe punishment, the death penalty, to these subjects, not only will we not be able to prevent their criminal behavior, but we will also create a general disregard for the law in the community. When society have not yet built an effective mechanism to control human behavior and some people's sense of respect for the law is not high, eliminating especially dangerous elements from society, making them incapable and unable to continue committing crimes, society will create a healthy, peaceful and happy living environment for the people. The application and execution of the death penalty comes from the requirement to effectively fight against crime, stabilize social order and security. However, the application of the death penalty in Vietnam still has some shortcomings and recommendations, specifically as follows:

First, the death penalty has been eliminated in many places in the 2015 Penal Code compared to previous Penal Codes, however, the death penalty in the law is still high compared to other countries in the world and international treaties to which Vietnam is a member.

Second, in the section on crimes, the death penalty is stipulated as "... shall be sentenced to imprisonment from ... years to 20 years, life imprisonment or death penalty" leading to many difficulties and inconsistencies in the application of the Courts in practice.

Therefore, the author recommends to improve the law on the death penalty.

Firstly, to be consistent with the world development trend and international treaties to which Vietnam is a member, in the coming time, legislators need to study the elimination of the death penalty for some types of crimes that do not require the death penalty but still achieve the purpose of deterrence and crime prevention.

Secondly, improve the definition of the death penalty in Clause 1, Article 40 of the 2015 Penal Code in the direction of clarifying the meaning and specifying the nature of this penalty as "depriving the convicted person of the right to life according to the provisions of law". Specifically, Clause 1, Article 40 needs to be amended as follows:

“1. The death penalty is a special punishment that deprives the convicted person of the right to life according to the provisions of law, and is only applied to those who commit particularly serious crimes in cases where the application of other punishments does not meet the requirements for crime prevention and control, and is one of the crimes against national security, against human life, drug-related crimes, corruption and some other particularly serious crimes prescribed by this Code”.

Thirdly, it is necessary to add a provision to postpone the execution of the death penalty for a certain period of time.

Article 48 of the Chinese Penal Code stipulates a postponement of the execution of the death penalty for 02 years when it is deemed unnecessary to execute it immediately. [7]   After the 02-year postponement, the prosecution agencies shall assess the situation of the convicted person to handle it according to one of the following three cases:

(1) During the period of postponement of the execution of the death penalty, if the convicted person does not intentionally commit a new crime, the sentence will be reduced from death penalty to life imprisonment;

(2) During the period of suspension of the death penalty, if the convicted person makes great contributions, the sentence will be reduced from the death penalty to a prison sentence of 15 to 20 years;

(3) During the period of suspension of the death penalty, if the convicted person intentionally commits a crime, which is verified to be true, the Court will issue a judgment or approve the execution of the death penalty. This is a good provision that Vietnam can apply to ensure caution in the application of the death penalty, minimizing errors; at the same time, creating conditions for the convicted person to correct mistakes, overcome consequences, and make merit to atone for his/her crime to reduce the sentence, especially for corruption crimes, in order to increase the possibility of recovering corrupt assets.

References:

1. National Assembly (2013), Constitution of the Socialist Republic of Vietnam;
2. National Assembly (2015), Criminal Procedure Code 2015, amended and supplemented in 2021, Hanoi;
3. National Assembly (2015), Penal Code 2015, amended and supplemented in 2017, Hanoi.
4. Charter of Fundamental Rights of the European Union in 2000// URL: https://www.europarl.europa.eu/charter/pdf/text_en.pdf  (Date of request 17.11.24).
5. Universal Declaration of Human Rights// URL: https://www.un.org/en/about-us/universal-declaration-of-human-rights  (Date of request 17.11.24).
6. International Covenant on Civil and Political Rights in 1966// URL:  https://en.wikisource.org/wiki/International_Covenant_on_Civil_and_Political_Rights  (Date of request 17.11.24).
7. Chinese Penal Code// URL:  https://en.wikibooks.org/wiki/Annotated_Republic_of_China_Laws/Criminal_Code_of_the_Republic_of_China  (Date of request 17.11.24).