Phần thứ tư Bộ luật Tố tụng Hình sự 2003: Xét xử phúc thẩm

Part Four

APPELLATE TRIAL

Chapter XXIII: NATURE OF APPELLATE TRIAL AND RIGHTS TO APPEAL AND PROTEST

Article 230.- Nature of appellate trial

Appellate trial means the re-trial of the cases or the review of first-instance decisions by immediate superior courts when the first-instance judgments or decisions in such cases are appealed or protested against before they become legally valid.

Article 231.- Persons entitled to appeal

Defendants, victims and their lawful representatives shall have the right to appeal against first-instance judgments or decisions.

Defense counsels shall have the right to appeal in order to protect the interests of minors or persons with physical or mental defects.

Civil plaintiffs, civil defendants and their lawful representatives shall have the right to appeal against part of the judgments or decisions, which is related to damage compensation.

Persons with interests and obligations related to the cases and their lawful representatives shall have the right to appeal against part of the court judgment or decisions, which is related to their interests and obligations.

Defense counsels of the interests of minors or persons with physical or mental defects shall have the right to appeal against part of the court judgments or decisions, which is related to the interests and obligations of the persons whom they protect.

Persons who are declared not guilty by the courts shall have the right to appeal against part the first-instance judgments declaring them not guilty regarding the reasons for such declaration.

Article 232.- Protests by procuracies

The procuracies of the same level and the immediate superior procuracies shall have the right to protest against first-instance judgments or decisions.

Article 233.- Procedures for lodging appeals and protests

1. Appellants must send their written appeals to the courts which have conducted first-instance trial or to the courts of appeal. If the defendants are under temporary detention, the superintendence boards of the detention centers must guarantee the defendants to exercise their right to appeal.

Appellants may also present their appeals directly to the courts which have conducted first-instance trials. The courts must make minutes of such appeals as prescribed in Article 95 of this Code.

2. The procuracies of the same level or immediate higher procuracies shall lodge written protests, clearly stating the reasons therefor. Written protests shall be addressed to the courts which have conducted first-instance trials.

Article 234.- Time limits for lodging appeals and protests

1. The time limit for lodging appeals is fifteen days after the date of pronouncement of judgments. For defendants or involved parties absent at the court sessions, the time limit for lodging appeals is counted from the date the copies of the judgments are handed to them or posted up.

The time limit for the procuracies of the same level to lodge protests is fifteen days and for immediate higher procuracies is thirty days, counting from the date of pronouncement of the judgments

2. If written appeals are sent by post, the date of such appeals shall be the date of the postmarks affixed by the sending post offices on the envelops. Where written appeals are sent via the superintendence boards of the detention centers, the date of such appeals shall be the date the superintendence boards of the detention centers receive such written appeals.

Article 235.- Late appeals

1. Late appeals may be accepted if plausible reasons can be given.

2. The courts of appeal shall set up trial panels each consisting of three judges to consider the reasons for late appeals. Such trial panels shall have the right to decide to accept or reject late appeals.

Article 236.- Notification of appeals or protests

1. Appeals and protests must be notified in writing by the courts of first instance to the procuracies of the same level and participants in the procedure within seven days after their receipt.

2. Persons notified of the appeals or protests shall have the right to send their written opinions on the contents of such appeals or protests to the courts of appeal. Their opinions shall be included in the case files.

Article 237.- Consequences of appeals and protests

1. Parts of the judgments, which are appealed or protested against, shall not be executed, except for the cases prescribed in Clause 2, Article 255 of this Code. When the whole judgments are appealed or protested against, the whole judgments shall not be executed.

2. The courts of first instance must send the case files and appeals or protests to the courts of appeal within seven days after the expiry of the time limit for lodging appeals or protests.

Article 238.- Supplementation, change and withdrawal of appeals or protests

1. Before the opening of or during the appellate-court sessions, the appellants or procuracies shall have the right to supplement or change their appeals or protests, provided that such supplementation or change must not aggregate the situation of the defendants; or to withdraw part or the whole of their appeals or protests.

2. In cases where the whole appeals or protests are withdrawn at the court sessions, the appellate trial must be ceased. First-instance judgments shall become legally valid from the date the courts of appeal issue decisions to cease the appellate trial.

Article 239.- Appeals and protests against decisions of the courts of first instance

1. The time limit for the procuracies of the same level to protest against decisions of the courts of first instance is seven days and for immediate higher procuracies fifteen days, counting from the date of issuance of such decisions.

2. Decisions of the courts of first instance to suspend or cease the cases may be appealed against within seven days, counting from the date the persons with the right to appeal receive such decisions.

Article 240.- Validity of courts’ first-instance judgments or decisions which are not appealed or protested against

The courts’ first-instance judgments and decisions and parts thereof which are not appealed or protested against, shall become legally valid from the expiry date of the time limit for lodging appeals or protests.

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.