Precedent No. 46/2021/AL

Precedent No. 46/2021/AL on determining the circumstances for determining the penalty framework "For children that the offender has the responsibility to educate" in the crime of "Obscenity against children" was approved by the Council of Judges of the Supreme People's Court on November 25, 2021 and promulgated under Decision No. 594/QD-CA dated December 31, 2021 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 12/2020/HS-GDT dated August 7, 2020 of the Council of Judges of the Supreme People's Court on the case of "Obscenity against children" against defendant Dinh Quang D.

Location of case law:

Paragraphs 3 and 4 of the “Court's Opinion” section.

Overview of case law:

- Case law:

The defendant was a teacher at the school where the victim was a child, did not directly teach the victim, and committed obscene acts against the victim.

- Legal solutions:

In this case, the Court must determine that the defendant committed the crime of “Obscenity against children” according to Point c, Clause 2, Article 116 of the 1999 Penal Code with the sentencing circumstance “For children whom the offender has the responsibility to educate” (corresponding to Point d, Clause 2, Article 146 of the 2015 Penal Code, amended and supplemented in 2017, on the crime of “Obscenity against persons under 16 years old” with the sentencing circumstance “For persons whom the offender has the responsibility to educate”).

Legal provisions relating to precedents:

- Point c, Clause 2, Article 116 of the 1999 Penal Code on the crime of "Obscenity against children" (corresponding to Clause 1, Point d, Clause 2, Article 146 of the 2015 Penal Code, amended and supplemented in 2017, on the crime of "Obscenity against persons under 16 years old");

• Point d, point e, Clause 1, Article 31 of Circular 12/2011/TT-BGDDT dated March 28, 2011 of the Ministry of Education and Training promulgating the Charter of Junior High Schools, High Schools and Multi-level General Schools.

CASE CONTENT

Because they knew each other before, at around 7:30 a.m. on April 2, 2017, Nguyen Thi T (born August 3, 2001), a 10th grade student at L High School, used her phone to text Dinh Quang D, a teacher at the school, and asked to come to D's room to play.

After the appointment, T walked to D's room in the teachers' dormitory. In D's room, because he was afraid that someone would pass by, D closed the door and held T's hand to read his palm. At this time, D put his arm around T's shoulder and hugged her waist. Seeing that T did not react, D had the intention of getting close to T to satisfy his personal needs.

D kissed T, pulled T down to the bed and lay on the bed with T, continued to kiss, touched T's stomach and chest, then used his hand to open the button and pull down T's zipper. D put his left hand on T's genitals. T did not agree, so he pulled D's hand away and pulled up the zipper. D continued to pull down T's zipper and pulled down the front of D's pants, exposing part of his penis, touching T's hips. T pushed D away, D's pants automatically popped up, pushing his penis back into his pants. D continued to sit on T's lap, used both hands to rub T's cheeks, T pushed D away and stood up to fix his hair and clothes, demanding to go home. D went behind T, hugged T, then opened the door for T to go home. After that, T told her family about D's sexual assault. On April 3, 2017, Ms. Tran Thi H, T's mother, reported Dinh Quang D's actions.

In the Forensic Examination Conclusion No. 166/TTPY dated July 7, 2017, the Forensic Examination Center of G province concluded: Nguyen Thi T suffered no physical harm.

In the First Instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017, the People's Court of Chu Prong District applied Clause 1, Article 116; Points h, p, s, Clause 1, Clause 2, Article 46 of the  1999 Penal Code, sentencing Dinh Quang D to 07 months in prison for the crime of "Obscenity with children".

On October 2, 2017, Dinh Quang D appealed for a reduced sentence and a suspended sentence.

In the Criminal Appeal Judgment No. 97/2017/HSPT dated December 29, 2017, the People's Court of Gia Lai province accepted the appeal of the defendant Dinh Quang D; applied Clause 1, Article 116; points h, p, s Clause 1, Clause 2, Article 46; Article 60 of the 1999 Penal Code, additionally applied Point x Clause 1, Article 51 of the 2015 Penal Code, amended the first instance criminal judgment, sentenced Dinh Quang D to 07 months in prison but suspended the sentence.

On April 6, 2018, the Chief Prosecutor of the High People's Procuracy in Da Nang issued Decision No. 48/QD-VC2 to appeal the final judgment and the appellate criminal judgment, claiming that Dinh Quang D's crime must be tried with the aggravating circumstance "Regarding children whose education the offender has the responsibility to educate" as prescribed in Point c, Clause 2, Article 116 of the 1999 Penal Code.

In the Final Appeal Decision No. 55/2018/HS-GDT dated October 23, 2018, the Judicial Committee of the High People's Court in Da Nang upheld the criminal appeal judgment.

In Protest No. 13/QD-VKSTC-V7 dated October 23, 2019, the Chief Justice of the Supreme People's Procuracy decided to: Protest the Final Appeal Decision No. 55/2018/HS-GDT dated October 23, 2018 of the High People's Court in Da Nang and the Criminal Appeal Judgment No. 97/2017/HSPT dated December 29, 2017 of the Gia Lai Provincial People's Court. Request the Council of Judges of the Supreme People's Court to review the case under the cassation procedure to annul the First Instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017 of the People's Court of Chu Prong District, the Criminal Appeal Judgment No. 97/2017/HSPT dated December 29, 2017 of the People's Court of Gia Lai Province and the Decision of cassation No. 55/2018/HS-GDT dated October 23, 2018 of the High People's Court in Da Nang for a retrial in accordance with the provisions of law. For the following reasons:

“The High People's Court in Da Nang determined: The circumstance of "Person responsible for education" stipulated in Point c, Clause 2, Article 116 of  the 1999 Penal Code is understood to be the teacher who directly teaches or is the homeroom teacher of the victim. In this case, the defendant Dinh Quang D is a teacher, the victim Nguyen Thi T is a student, however, the two do not have a direct teacher-student relationship, so Clause 1, Article 116 of the 1999 Penal Code is applied to punish Dinh Quang D. The above determination and decision of the High People's Court in Da Nang is a serious mistake in applying the Penal Code, because: Dinh Quang D is a geography teacher at L High School, where Nguyen Thi T is a student. According to the provisions of Point d, e, Clause 1, Article 31 of Circular 12/2011/TT-BGDDT dated March 28, 2011 of the Ministry of Education and Training issued together with the Charter of Junior High Schools, High Schools and Multi-level General Schools, the duty of subject teachers is to protect the legitimate rights and interests of students, coordinate with homeroom teachers and other teachers in teaching and educating students. Therefore, as a teacher of the school, D must be responsible for educating all students of the school, including Nguyen Thi T. The criminal act of Dinh Quang D has seriously affected the reputation of all teachers of L High School. Therefore, the criminal act of Dinh Quang D must be prosecuted and tried with the framing circumstance "Regarding children that the offender is responsible for educating" stipulated in Point c, Clause 2, Article 116 of the Penal Code.

The People's Court of Chu Prong district applied Clause 1, Article 116  of the 1999 Penal Code to sentence Dinh Quang D to 7 months in prison, which is not consistent with the nature and level of danger of the act that the defendant committed. The appeal judgment and the final judgment applying additional point x, Clause 1, Article 51 of the 2015 Penal Code to defendant D is incorrect because the defendant's father is not a martyr; at the same time, giving defendant D a suspended sentence does not meet the requirements of fighting against the type of crime of sexual abuse of children that is evolving complicatedly and is of special concern to public opinion as it is today.

At the cassation trial, the representative of the Supreme People's Procuracy requested the Council of Judges of the Supreme People's Court to accept the appeal of the Chief Prosecutor of the Supreme People's Procuracy; annul the First Instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017 of the People's Court of Chu Prong District, the Criminal Appeal Judgment No. 97/2017/HSPT dated December 29, 2017 of the People's Court of Gia Lai Province and the Decision of cassation trial No. 55/2018/HS-GDT dated October 23, 2018 of the High People's Court in Da Nang to re-try the case in accordance with the provisions of law.

JUDGMENT OF THE COURT

[1] Based on the documents in the case file, the Court of First Instance and the Court of Appeal's trial of Dinh Quang D for "Crime of child molestation" is well-founded and in accordance with the law.

[2] Regarding the circumstances determining the penalty framework: The Committee of Judges of the High People's Court in Da Nang believes that D is not the teacher who directly taught Nguyen Thi T, so the application of the aggravating circumstance "Regarding children that the offender has the responsibility to educate" as prescribed in Point c, Clause 2, Article 116 of the 1999 Penal Code is illegal.

[3] Dinh Quang D is a geography teacher at L High School. On March 26, 2017, D went to the ethnic boarding school to ask a male student to help chop bananas behind D's dormitory. He met T playing in the female students' room and learned that T was in 10th grade. From then on, D and T often texted each other. On April 2, 2017, T texted to come to D's room to play and D sexually assaulted T. Therefore, D had known T for about a week and knew that T was a student at L High School.

[4] According to the provisions of Point d, e, Clause 1, Article 31 of Circular 12/2011/TT-BGDDT dated March 28, 2011 of the Ministry of Education and Training issued together with the Charter of Junior High Schools, High Schools and Multi-level General Schools, the duty of subject teachers is to protect the legitimate rights and interests of students, coordinate with homeroom teachers and other teachers in teaching and educating students. Therefore, as a teacher of the school, D must be responsible for educating all students of the school, including Nguyen Thi T. Therefore, D must be subject to the aggravating circumstance of "Regarding children that the offender has the responsibility to educate" stipulated in Point c, Clause 2, Article 116 of the 1999 Penal Code to be in accordance with the law.

[5] The People's Court of Chu Prong district applied Clause 1, Article 116 of the 1999 Penal Code to sentence Dinh Quang D to 07 months in prison, which is not consistent with the nature and level of danger of the act that the defendant committed. The appellate judgment and the final judgment applying additional point x, Clause 1, Article 51 of the 2015 Penal Code to defendant D are incorrect because according to the veteran's record, the defendant's father is not a martyr; at the same time, giving defendant D a suspended sentence does not meet the requirements of fighting against the type of crime of sexual abuse of children that is evolving complicatedly and is of special concern to public opinion as it is today.

[6] Therefore, the Chief Justice's Procuracy's Appeal No. 13/QD-VKSTC-V7 dated October 23, 2019 against the Chief Justice's Decision No. 55/2018/HS-GDT dated October 23, 2018 of the High People's Court in Da Nang and the Criminal Appeal Judgment No. 97/2017/HSPT dated December 29, 2017 of the Gia Lai Provincial People's Court is necessary; It is necessary to annul the First Instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017 of the People's Court of Chu Prong District, the Appeal Criminal Judgment No. 97/2017/HSPT dated December 29, 2017 of the People's Court of Gia Lai Province and the Final Appeal Decision No. 55/2018/HS-GDT dated October 23, 2018 of the High People's Court in Da Nang to re-try the case in accordance with the provisions of law.

For the above reasons,

DECISION

Pursuant to Clause 3, Article 388; Article 391 and Article 394 of the 2015 Criminal Procedure Code:

1. Accept the Chief Justice's Appeal No. 13/QD-VKSTC-V7 dated October 23, 2019 of the Chief Justice of the Supreme People's Procuracy against the Chief Justice's Decision No. 55/2018/HS-GDT dated October 23, 2018 of the High People's Court in Da Nang and the Criminal Appeal Judgment No. 97/2017/HSPT dated December 29, 2017 of the Gia Lai Provincial People's Court.
2. Annul the First Instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017 of the People's Court of Chu Prong District, the Appeal Criminal Judgment No. 97/2017/HSPT dated December 29, 2017 of the People's Court of Gia Lai Province and the Final Appeal Decision No. 55/2018/HS-GDT dated October 23, 2018 of the High People's Court in Da Nang to retry the case in accordance with the provisions of law.
3. Transfer the case file to the People's Court of Chu Prong district, Gia Lai province for retrial.

CONTENT OF PRECEDENT

“[3] Dinh Quang D is a geography teacher at L High School. On March 26, 2017, D went to the ethnic boarding school to ask a male student to help him cut bananas behind D's dormitory. He met T playing in the female students' room and learned that T was in 10th grade. From then on, D and T often texted each other. On April 2, 2017, T texted to come to D's room to play and D sexually assaulted T. Therefore, D had known T for about a week and knew that T was a student at L High School.

[4] According to the provisions of Point d, e, Clause 1, Article 31 of Circular 12/2011/TT-BGDDT dated March 28, 2011 of the Ministry of Education and Training issued together with the Charter of Junior High Schools, High Schools and Multi-level General Schools, the duty of subject teachers is to protect the legitimate rights and interests of students, coordinate with homeroom teachers and other teachers in teaching and educating students. Therefore, as a teacher of the school, D must be responsible for educating all students of the school, including Nguyen Thi T. Therefore, D must be subject to the aggravating circumstance of "Regarding children that the offender has the responsibility to educate" stipulated in Point c, Clause 2, Article 116 of the 1999 Penal Code to be in accordance with the law.

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