Chương XXIV Bộ luật Tố tụng Hình sự 2003: Thủ tục xét xử phúc thẩm

Chapter XXIV: APPELLATE TRIAL PROCEDURES

Article 241.- Scope of appellate trial

The court of appeal shall consider the contents of appeals or protests. If deeming it necessary, they may examine other parts of the judgments, which are not appealed or protested against.

Article 242.- Time limit for appellate trial

The provincial-level people’s courts and the military zone-level military courts must open appellate court sessions within sixty days; the Court of Appeal of the Supreme People’s Court or the Central Military Court must open appellate court sessions within ninety days after receiving the case files.

At least fifteen days before opening court sessions, the courts of appeal must notify in writing the procuracies of the same level and participants in the procedure of the time and venue of the appellate trial of the cases.

Article 243.- Application, change or cancellation of deterrent measures by courts of appeal

1. After receiving the case files, the courts of appeal shall have the right to decide to apply, change or cancel deterrent measures. The application, change or cancellation of the temporary detention measure shall be decided by the presidents or vice-presidents of the provincial-level people’s courts or the military zone-level military courts or by the judges holding the post of president or vice-president of the Court of Appeal of the Supreme People’s Court.

The temporary detention time limit must not exceed the time limit for appellate trial prescribed in Article 242 of this Code.

2. For defendants being under temporary detention whose detention periods end on the date of opening the appellate court sessions, if deeming it necessary to continue their temporary detention in order to complete the trial, the courts shall issue orders to keep them in temporary detention until the end of the court sessions.

3. For defendants being under temporary detention and sentenced to imprisonment and whose temporary detention periods end on the date of completion of the court sessions, the trial panels shall issue decisions to keep them in temporary detention in order to secure the execution of their judgments, except for the cases prescribed in Clause 4 and Clause 5, Article 227 of this Code.

For defendants who are not held in temporary detention but punished by imprisonment, the trial panels may issue decisions to arrest them immediately for temporary detention after pronouncing their judgments, except for the cases prescribed in Article 261 of this Code.

The temporary detention time limit shall be forty five days after the date of pronouncement of the judgments.

Article 244.- Composition of the appellate trial panels

An appellate-trial panel shall be composed of three judges and possibly added two jurors in case of necessity.

Article 245.- Participants in appellate court sessions

1. At appellate court sessions, the participation by procurators of the procuracies of the same level is compulsory, if they do not appear, the court sessions must be postponed.

2. Defense counsels, defense counsels of the interests of the involved parties, appellants, persons with interests and obligations related to the appeals or protests shall be summoned to attend the court sessions. If any of them is absent for plausible reasons, the trial panels may still proceed with the trial but shall refrain from issuing judgments or decisions unfavorable to the absent defendant or involved party. Court sessions must be postponed in other cases.

The time limit for postponing a court session as prescribed in Clause 1 or Clause 2 of this Article or in Articles 45, 46 and 47 of this Code shall not exceed thirty days, counting from the date of issuance of the decision to postpone the court session.

3. The participation in court sessions by other persons shall be decided by the courts of appeal if they deem their appearance necessary.

Article 246.- Supplementation and examination of evidences at the courts of appeal

1. Before the trial or during the inquiry at the court sessions, the procuracies may supplement by themselves or at the court’s request new evidences; the appellants or persons with interests and obligations related to the appeals or protests, defense counsels and defense counsels of the interests of the involved parties shall also have the right to supplement documents and/or objects.

2. Previous evidences, new evidences, newly added materials and/or objects must all be examined at the court sessions. Judgments of the courts of appeal must be based on both previous and new evidences.

Article 247.- Procedures at appellate court sessions

Appellate court sessions shall be conducted like first-instance ones but before the inquiry, one trial panel member must briefly present the case contents, decision(s) of the first-instance judgment, contents of the appeal or protest. In the arguing process, procurators must present the procuracies’ viewpoints on the settlement of the cases.

Article 248.- Appellate judgments and jurisdiction of courts of appeal

1. The courts of appeal shall hand down the judgments in the name of the Socialist Republic of Vietnam. A judgment should contain the date, hour and venue of the court session; full names of the members of the trial panel and the court clerk; the full names of the procurators; the full name, birth date, birth place, residence, occupation, educational level, social status and previous criminal records of the defendant; the date of custody or temporary detention of the defendant; the full name of the defense counsel; full names, ages, occupations and residences of the victim, civil plaintiff, civil defendant, persons with interests and obligations related to the case, and their lawful representatives.

A judgment must contain the brief content of the case, the process of settling the case, decisions of the first-instance judgment, the contents of the appeal or protest, and grounds to make one of the decisions defined in Clause 2 of this Article. The last part of a judgment shall contain the court decisions.

2. The courts of appeal shall have the right to decide:

a/ To reject the appeal or protest and keep the first-instance judgment unchanged;

b/ To amend the first-instance judgment;

c/ To cancel the first-instance judgment and transfer the case file for re-investigation or re-trial;

d/ To cancel the first-instance judgment and cease the case.

3. Appellate judgments shall become legally valid from the date of their pronouncement.

Article 249.- Amendment of first-instance judgments

1. The courts of appeal shall have the right to amend the first-instance judgments as follows:

a/ To exempt defendants from penal liability or penalty;

b/ To apply the Penal Code’s article and clauses on lesser offenses;

c/ To commute penalties for defendants;

d/ To reduce the levels of damage compensation and amend decisions on handling exhibits;

e/ To shift to lighter penalties; to retain the imprisonment term and hand down suspended sentences.

2. If having grounds, the courts of appeal may also commute penalties, apply the Penal Code’s articles and clauses on lesser offenses, shift to lighter penalties; retain the imprisonment terms and hand down suspended sentences also on defendants who do not appeal or are not appealed or protested against.

3. Where the protesting procuracies or the appealing victims request, the courts of appeal may also increase penalties, apply the Penal Code’s articles and clauses on more serious offenses; increase the damage compensation levels; if the procuracies protest or the victims, civil plaintiffs or civil defendants appeal; if having grounds, the courts may also commute penalties, apply the Penal Code’s articles and clauses on lesser offenses, shift to lighter penalties; retain the imprisonment terms and hand down suspended sentences, or reduce the damage compensation levels.

Article 250.- Dismissal of first-instance judgments for re-investigation or re-trial

1. The courts of appeal shall dismiss the first-instance judgments when they find that the investigation at the first-instance level is insufficient and cannot be supplemented at the appellate level.

2. The courts of appeal shall dismiss the first-instance judgments for re-trial at the first-instance level with a new composition of the trial panel in the following cases:

a/ The composition of the first-instance trial panel did not conform to law provisions or showed other serious violations of the criminal procedure.

b/ There are grounds to believe that the persons who were declared not guilty by the first-instance courts had committed offences.

3. When dismissing the first-instance judgments for re-investigation or re-trial, the courts of appeal must clearly state in writing the reasons therefor.

4. When dismissing the first-instance judgments for re-trial, the courts of appeal shall neither decide in advance on evidences which the courts of first instance must accept or reject nor decide in advance on the Penal Code’s articles and clauses as well as penalties the courts of first instance must apply.

5. In case of dismissing the first-instance judgments for re-investigation or re-trial but the defendants’ temporary detention period has expired and if deeming it necessary to continue holding the defendants in temporary detention, the appellate trial panels shall issue decisions to continue keeping the defendants in temporary detention till the procuracies or the courts of first instance re-handle the cases.

Within fifteen days after the first-instance judgments are dismissed, the case files must be transferred to the procuracies or the courts of first instance for handling according to general procedures.

Article 251.- Dismissal of first-instance judgments and cessation of cases

When having one of the grounds prescribed at Points 1 and 2, Article 207 of this Code, the courts of appeal shall dismiss the first-instance judgments, declare the defendants not guilty and cease the cases; if having one of the grounds prescribed at Points 3, 4, 5, 6 and 7, Article 107 of this Code, they shall dismiss the first-instance judgments and cease the cases.

Article 252.- Re-investigation or re-trial of criminal cases

After the courts of appeal dismiss the first-instance judgments for re-investigation or re-trial, the investigating bodies shall re-investigate, the procuracies re-institute and courts of first instance re-try the cases according to general procedures.

Article 253.- Appellate trial of decisions of courts of first instance

1. For appealed or protested decisions of the courts of first instance, the courts of appeal shall not have to open court sessions but may, if deeming it necessary, summon the necessary participants in the procedure and listen to their opinions before issuing decisions.

2. The courts of appeal shall have to issue decisions to settle appeals or protests within ten days after receiving the case files.

3. When examining the appealed or protested decisions of the courts of first instance, the courts of appeal shall have the powers defined in Article 248 of this Code.

4. Appellate decisions shall become legally valid from the date of their issuance.

Article 254.- Handing of appellate judgments and decisions

Within ten days counting from the date of pronouncing the judgments or issuing the decisions, the courts of appeal must hand copies of the appellate judgments or decisions to the appellants, the courts, procuracies and police agencies of places where the cases were tried at the first-instance level, and to persons with interests and obligations related to the appeals or protests or their lawful representatives, the competent civil judgment-executing agencies in cases where the appellate judgments pronounce penalties of pecuniary fines, property confiscation and civil decisions; and notify in writing the administrations of the communes, wards or townships where the defendants reside or the agencies or organizations where they work. Where the appellate trial is conducted by the Court of Appeal of the Supreme People’s Court, this time limit may be longer but must not exceed twenty five days.

Victims, civil plaintiffs, civil defendants, persons with interests and obligations related to the cases or their lawful representatives shall have the right to request the courts to provide them with extracts or copies of the judgments.