Chương XXII Bộ luật Tố tụng hình sự 2015: Xét xử phúc thẩm

Chapter XXII

APPELLATE TRIAL

Volume I. CHARACTERISTICS OF APPELLATE TRIAL AND RIGHT TO APPEAL

Articles 330. Characteristics of appellate trial

1. Appellate trial means that the immediate superior Court re-tries a case or re-considers the decisions passed by the first instance court, whose judgments and rulings pronounced for the case are appealed before coming into force.

2. The decisions in a first instance court, which are appealed, refer to decisions to suspend or dismiss the case or lawsuit against suspects and defendants and other decisions in the first instance court as per this Law.

Article 331. Right to appeal

1. Defendants, crime victims and their representatives shall have the right to appeal against the judgments or rulings of the first instance court.

2. Defense counsels shall have the right to appeal protect the benefits of individuals aged below 18 or having mental or physical defects, who they have defended.

3. Civil plaintiffs, civil defendants and their representatives shall have the right to appeal against parts of the judgments or rulings, that are related to compensations for damage.

4. Individuals having benefits and duties from the case and their representatives shall have the right to appeal against parts of the judgments or rulings, which are associated with their duties and benefits.

5. The protectors of legitimate rights and benefits of crime victims or litigants aged less than 18 or having mental or physical defects shall have the right to appeal against parts of the judgments or rulings, which are in connection with the benefits and duties of those under their protection.

6. A person declared not guilty by a Court shall have the right to appeal against the justifications of the first-instance court’s verdict of no guilty.

Article 332. Appellate procedure

1. The appellant lodges an appeal to the court that conducted the first instance trial or a court of second instance.

If the defendant is held in detention, the warden of the detention center or head of the detention facility must enable the defendant's execution of his right to appeal. The warden or head shall obtain and forward the written appeal to the first-instance court that issued the judgments or rulings appealed.

The appellant can directly present his appeal to the court that conducted the first-instance trial or the appellate court. The court must make a written record of the appeal as per Article 133 of this Law.

The appellate court, that has made the written record of the appeal or received the written appeal, shall send such record or written appeal to the first instance court for further activities according to general regulations.

2. A written appeal shall contain these primary details:

a) The date of the written appeal;

b) The full name and address of the appellant;

c) The reasons and petitions of the appellant;

d) The signature or fingerprint of the appellant.

3. The written or direct appeal shall be enclosed with additional evidences, documents and items, if available, that evince the grounds of such appeal.

Article 333. Time limit for appeal

1. The time limit for appeal against a first-instance court’s judgments is 15 days upon the pronouncement of such judgments. If the defendant or litigant is absent from the court, the time limit for appeal commences upon his receipt or the proclamation of the judgments according to the laws.

2. The time limit for appeal against a first-instance court’s rulings is 07 days and commences when the person entitled to appeal receives such rulings.

3. The entry date of an appeal is determined as follows:

a) The date shown in the postmark on the mail containing the written appeal sent by post;

b) If the written appeal is forwarded by the warden of the detention center or head of the detention facility, the entry date of the appeal shall be the date when the warden or detention head receives the written appeal. The warden or detention head must specify and confirm the date of receipt by affixing his signature on the written appeal;

c) If the appellant submits the written appeal in court, the entry date of the appeal shall be fixed upon the Court’s receipt of the written appeal. If the appellant directly appeals in court, the entry date of the appeal shall be fixed upon the Court’s written record of such appeal.

Article 334. Procedures for admission and processing of appeals

1. The first-instance court, after receiving the written appeal or executing a written record of the appeal, must enter details into a receipt journal and verify the validity of such appeal according to this Law.

2. If the written appeal is valid, the first-instance Court shall send a notice of appeal according to Article 338 of this Law;

3. If the written appeal is valid but its content is obscure, the first-instance Court must promptly inform the appellant for the latter's elucidation.

4. If the content of the written appeal conforms to this Law but the time limit for appeal expires, the first-instance court shall request the appellant to present his excuses and evidences, documents and items, if available, which justify his late submission of the written appeal.

5. If the petitioner does not have the right to appeal, the Court shall return the petition, in 03 days upon the receipt of such paper, and notice the petitioner and equivalent Procuracy in writing. Such written notice must specify reasons for the return of the petition.

A complaint can be lodged against the return of such petition in 07 days upon the receipt of the notice. The processing of such complaint shall abide by the stipulations in Chapter XXXIII of this Law.

Article 335. Late appeal

1. The filing of a late appeal shall be permissible on condition that the appellant has been obstructed by force majeure or objective obstacles to lodge an appeal within the time limit as defined by this Law.

2. The court of first instance, in 03 days upon receiving a late appeal, shall forward to the appellate court the written appeal, the appellant's letter explaining the retardation of the appeal and evidences, documents and items (if available).

3. The appellate court, in 10 days upon receiving the late appeal enclosed with evidences, documents and items (if any), shall establish a Panel of three Judges to scrutinize the late appeal. The panel that contemplates the late appeal shall be entitled to decide to endorse or reject such appeal in writing and specify its reasons in the written decision.

4. The procurator of the equivalent Procuracy shall attend the meeting, in which the late appeal is perused. The appellate Court, in 03 days prior to its contemplation of the late appeal, shall send a copy of the late appeal with evidences and documents (if any) to the equivalent Procuracy. The procurator shall express the Procuracy’s standpoints on the ratification of the late appeal.

5. The decision by the late appeal review Panel shall be sent to the appellant, the Court of first instance and the Procuracy equivalent to the appellate Court.

If the appellate Court accepts the late appeal, the Court of first instance shall go through the formalities as defined in this Law and send the case file to the appellate Court.

Article 336. Appeal by the Procuracy

1. An appeal can be lodged by a Procuracy equivalent to the court of first instance or the immediate superior Procuracy to protest a judgment or ruling passed by such court.

2. An appeal by the Procuracy shall contain these primary details:

a) The issue date and number of the decision to appeal;

b) The name of the Procuracy that decides to appeal;

c) The appeal is filed against parts or the whole of judgments or rulings of the first instance court;

d) The reasons, justifications for appeal and requests by the Procuracy;

dd) Full name and position of the individual signing the written decision to appeal.

Article 337. Time limit for protest

1. The time limit for protests against a first-instance court’s judgments is 15 days for the equivalent Procuracy and 30 days for the immediate superior Procuracy upon the Court’s pronouncement of such judgments.

2. The time limit for protests against a first-instance court’s rulings is 15 days for the equivalent Procuracy and 30 days for the immediate superior Procuracy upon the Court’s issuance of such rulings.

Article 338. Notice of appeals and delivery of prosecution decisions to appeal

1. The first-instance court shall notice the equivalent Procuracy and concerned individuals in writing about the appeal in 07 days upon the expiration of the time limit for appeal. Such written notice must specify the appellant’s requests.

2. The procuracy, in 02 days upon issuing the decision to appeal, shall deliver such appeal with additional evidences, documents and appeals (if any) to the Court that held the first-instance trial, the defendants and concerned individuals. The procuracy filing the appeal must send its decision to appeal to another Procuracy that has jurisdiction of appeals.

3. Participants in legal proceedings, who are informed in writing of the appeal or protest, shall be entitled to state their opinions on the content of such appeal in writing to the appellate Court. Their opinions shall be inputted into the case file.

Article 339. Results of appeals or protests

Parts of the Court's judgments and rulings being appealed shall not be enforced, unless otherwise defined in Article 363 of this Law. If an appeal is filed against the whole of the Court’s judgments or rulings, the enforcement of all judgments or rulings shall be postponed, except for circumstances as defined in Article 363 of this Law.

The first-instance Court must provide the appellate Court with the case file, written appeal and documents, evidences and items (if any) in 07 days upon the expiration of the time limit for appeals or protests.

Article 340. Admission of cases

1. The appellate Court, upon receiving the file of the case appealed with evidences, documents and items (if any), shall enter details into the case admission journal.

2. In 03 days upon the admission of the case, the Court president of the appellate Court  shall appoint a Judge to preside the court and meeting session.

Article 341. Transfer of case files to the Procuracy

1. The appellate Court, after admitting the case, must transfer the case file to the equivalent Procuracy. The case file must be returned to the Court, in 15 days’ time for the provincial People’s Procuracy or military procuracy of a military zone or 20 days’ time for the Higher People’s Procuracy or Central military procuracy upon such procuracies’ receipt of the case file. In the case of extremely severe or complicated felonies, the said time limit may be extended for 25 more days for the provincial People’s Procuracy or military procuracy of a military zone or 30 more days for the Higher People’s Procuracy or Central military procuracy.

2. Additional evidences, documents and items given to the appellate Court prior to its process of adjudication must be forwarded to the equivalent Procuracy. The procuracy, in 03 days upon receiving such additional documents, evidences and items, must return them to the Court.

Article 342. Amendment or withdrawal of appeals

1. The appellant or Procuracy deciding to appeal shall be entitled to amend the appeal but not to aggravate the defendants' circumstances, in the appellate court or prior to the start of the trial. The right to withdraw parts or all of the appeal shall be granted to the appellant, the Procuracy deciding to appeal or the immediate superior Procuracy in the appellate court or prior to the start of the trial.

2. The amendment or withdrawal of an appeal prior to the start of the trial must be executed in writing and sent to the appellate Court. The appellate court must inform the Procuracy, defendants and concerned individuals of the amendment or withdrawal of the appeal. The amendment or withdrawal of an appeal in court shall be noted in the court record.

3. If the appellant or Procuracy withdraws a part of the appeal in court, which does not affect other parts, the appellate Trial panel shall consider the part withdrawn and decide to terminate its adjudication of such part of the appeal.

Article 343. Effect of a first-instance court’s judgments and rulings not being appealed

A first-instance court's judgments, rulings and parts of such not being appealed shall come into force upon the expiration of the time limit for appeals and protests.

Volume II. PROCEDURE IN APPELLATE COURTS

Article 344. Appellate jurisdiction

1. A provincial People’s Court shall have appellate jurisdiction over a district People’s Court's judgments and rulings being appealed.

2. The higher People’s Court shall have appellate jurisdiction over a provincial's judgments and rulings being appealed. However, such appellate jurisdiction shall be subject to territorial jurisdiction.

3. A military court of a military zone shall have appellate jurisdiction over a local military court's judgments and rulings being appealed.

4. The Central military court shall have appellate jurisdiction over the judgments and rulings that were passed by a military court of a military zone and are being appealed.

Articles 345. Scope of appellate jurisdiction

An appellate court shall review the content of sentences and rulings being appealed. It can review other parts of such sentences and rulings, which are not appealed, if necessary.

Article 346. Time limit for appellate trial preparation

1. A provincial People’s Court or military Court of a military zone must start the appellate trial in 60 days upon the receipt of the case file. The higher People’s Court or Central military court must begin the appellate trial in 90 upon receiving the case file.

2. Upon the admission of a case, the provincial People’s Court and military court of the military zone, in 45 days, or the Higher People’s Court and Central military court, in 75 days, must issue one of the following decisions:

a) Terminate the appellate trial;

b) Hear the appellate case;

3. In 15 days upon deciding to hear the case, the Court must start the appellate trial.

4. The appellate court, in 10 days at most prior to the start of the trial, must send its decision to try the case to the equivalent Procuracy, defense counsels, crime victims, protectors of legitimate rights and benefits of crime victims and litigants, appellants and individuals having duties and interests related to the appeal.

Article 347. Implementation, alteration and termination of preventive and coercive measures

1. The appellate court, upon accepting the case, shall be empowered to implement, alter or terminate preventive and coercive measures.

The implementation, alteration and termination of detention shall be subject to the decisions of the Court president and Vice court presidents. The implementation, alteration and termination of other preventive and coercive measures shall be subject to the decisions of the Presiding judge.

2. The time limit for detention prior to trial shall not exceed the time limit for appellate trial preparation as per Article 346 of this Law.

The appellate court shall base on the first-instance court’s decision on detention to set the time limit for extending the active detention of a defendant, if deemed imperative. The appellate court shall base on the first-instance court’s decision on detention to extend the active time limit for the continued detention of a defendant, if deemed imperative.

If a defendant is held and must be kept in detention for the completion of the trial, the Trial panel shall decide to hold him in detention until the end of the trial.

3. If a defendant in detention is sentenced to jail but his detention time expires, the Trial panel shall decide to hold him in detention for sentence enforcement, unless otherwise stated in Section 4 and Section 5, Article 328 of this Law.

If a defendant not in detention is sentenced to jail, the Trial panel can decide to put him in detention upon the pronouncement of sentences.

The time limit for detention is 45 days upon the pronouncement of sentences.

Article 348. Termination of appellate trial

1. The appellate court shall terminate the appellate trial when the appellant or Procuracy withdraws the entire appeals. The termination of the appellate trial shall be subject to the decisions of the Presiding judge, prior to the start of the trial, or the decisions of the Trial panel, in court. The first-instance court’s sentences shall come into force upon the appellate Court’s issuance of the decision to terminate the appellate trial.

2. If the appellant or Procuracy, prior to the start of the trial, withdraws parts of the appeal, which are deemed not to affect other parts, the Presiding judge shall decide to terminate the appellate trial against the parts withdrawn.

3. A decision to terminate appellate trial must specify reasons of termination and other details as defined in Section 2, Article 132 of this Law.

The appellate court, in 03 days upon issuing its decision to terminate the appellate trial, must send such decision to the equivalent Procuracy, the court that held the first-instance trial, defense counsels, crime victims, litigants, protectors of legitimate rights and benefits of crime victims and litigants, appellants and individuals having duties and interests related to the appeal.

Article 349. Attendance of members of the appellate Trial panel and Court clerk

1. The trial shall proceed only in the presence of full members of the Trial panel and the Court clerk. Members of the Trial panel must hear the case from start to finish.

2. If a Judge fails to continue hearing the case but a reserve Judge attends the trial from the start, the reserve one shall be the substitute member of the Trial panel. If the Presiding judge cannot continue hearing the case, a member Judge of the Trial panel shall preside the court and a reserve Judge shall become a substitute member of the Trial panel.

3. If a reserve Judge or a Judge to substitute the presiding judge, when required, is not available, the trial shall be adjourned.

4. If the Court clerk is replaced or cannot continue attending the court, the trial may progress in the presence of a reserve Court clerk. If a substitute clerk is not available, the trial shall be halted.

Article 350. Attendance of Procurators

1. Procurator(s) of the equivalent Procuracy must appear in the court to exercise prosecution rights and administer the trial. The trial shall be adjourned in the absence of procurator(s). Many procurators may attend a lawsuit composed of serious and complex factors. If procurator(s) cannot attend the trial, reserve procurator(s) attending the trial from the start shall become substitute(s) to exercise prosecution rights and administer the trial.

2. If reserve procurator(s) is not available to replace procurator(s) who must be changed or cannot continue exercising prosecution rights or administering the trial, the Trial panel shall adjourn the trial.

Article 351. Attendance of defense counsels, protectors of legitimate rights and benefits of crime victims and litigants, appellants and individuals having duties and interests related to the appeal

1. Defense counsels, protectors of legitimate rights and benefits of crime victims and litigants, appellants and individuals having duties and interests related to the appeal must appear in court as per subpoenas. If such person(s) is absent, the Trial panel shall implement the following measures:

a) If the defense counsel is absent for the first time due to force majeure or objective obstacles, the trial shall be adjourned unless the defendant agrees to be tried in the absence of the defense counsel. If the defense counsel is absent not due to force majeure or objective obstacles or fails to appear as per the valid second subpoena, the court shall hold the trial.

If a defense counsel appointed as per Section 1, Article 76 of this Law is absent, the trial shall be adjourned unless the defendant or his representative agrees to engage in the trial in the absence of the defense counsel.

b) If the appellant, crime victims, litigants and their representatives who have interests and duties related to the appeal, and protectors of legitimate rights and benefits of crime victims and litigants are absent not due to force majeure or objective obstacles, the Trial panel shall hold the trial. If such people are absent due to force majeure or objective obstacles, the Trial panel can hold the trial but cannot pass a judgment or ruling that is inimical to the crime victims or litigants;

c) If the defendant filing or facing an appeal is absent due to force majeure or objective obstacles, the Trial panel can hold the trial but cannot pass a judgment or ruling inimical to the defendant. If the defendant’s absence out of force majeure or objective obstacles does not hinder the trial, the Trial panel shall hold the trial.

2. The appellate court shall decide to summon other individuals to the court, if necessary.

Article 352. Adjournment of appellate trial

1. The appellate court can adjourn the trial only in one of the following events:

a) There are justifications as defined in Article 52, 53, 349, 350 and 351 of this Law;

b) Evidences, documents or items must be verified or added outside the court;

If the trial is adjourned, the process of adjudication shall restart.

2. The duration of an adjournment to a trial of second instance shall be defined in Article 297 of this Law.

Article 353. Addition and examination of evidences, documents and items

1. The procuracy, prior to or at the appellate trial, can gather new evidences on its own discretion or at the requests for the Court. Furthermore, the appellant and individuals having duties and interests related to the appeal, defense counsels, protectors of legitimate benefits and rights of crime victims and litigants shall be entitled to supplement evidences, documents and items.

2. Existing and new evidences and newly added documents and items must be examined in court. The appellate court’s judgments must consider existing and newly added evidences.

Article 354. Procedure of appellate court

1. The procedures to start the trial and conduct oral arguments in an appellate court and first-instance court are similar; however, a member of the Trial panel in the court of second instance shall summarize the case, the first-instance court’s judgments and rulings and details of the appeal before the questioning session.

2. The presiding judge shall ask the appellant about his intention to amend or withdraw the appeal. If such intention exists, the presiding judge shall ask about the Procurator’s opinions on such amendment or withdrawal of the appeal.

The presiding judge shall ask about the Procurator's intention to amend or withdraw the protest. If such intention exists, the presiding judge shall ask the defendants and individuals in connection with the protest to express their opinions on such amendment or withdrawal of the protest.

3. During the court’s session of oral argument, the Procurator and individuals related to the appeal shall express their opinions on the details of the appeal. Moreover, the Procurator shall state the Procuracy’s opinions on the settlement of the case.

Article 355. The appellate Trial panel’s jurisdiction over the first-instance court’s judgments

1. The appellate trial panel shall have the rights to:

a) Reject appeals and sustain the first-instance court’s judgments;

b) Alter the first-instance court’s judgments;

c) Annul the first-instance court’s judgment and send the case back for re-investigation or retrial;

d) Annul the first-instance court’s judgments and dismiss the case;

dd) Terminate the appellate trial.

2. The appellate court’s judgments shall come into force upon the pronouncement of such judgments.

Article 356. Rejection of appeals and sustainment of the first-instance court’s judgments

The appellate court, when considering the first-instance court’s judgments justified and conformable to the laws, shall reject appeals and sustain the first-instance court’s judgments.

Article 357. Alteration of the first-instance court’s judgments

1. In the presence of new facts or grounds showing the disparity in the first-instance court’s judgments and the defendant’s personal records or nature, degree and consequences of the crimes, the Trial panel of the appellate court shall be entitled to alter the first-instance court’s judgments as follows:

a) Exempt the defendant from criminal liabilities or penalties; enforce no additional penalty or judicial remedy;

b) Implement articles and sections of the Criminal Code on lesser crimes;

c) Mitigate the defendant’s punishments;

d) Lessen the compensation level and amend the rulings on the handling of evidences;

dd) Commute a punishment to a less harsh one;

e) Sustain or alleviate a jail sentence and grant a suspended sentence.

2. At the requests by the Procuracy or crime victims, the Trial panel of the appellate court can:

a) Aggravate punishments and implement articles and sections of the Criminal Code on harsher crimes; pass additional punishments and implement judicial remedies;

b) Increase the compensation level;

c) Replace existing punishments with harsher ones;

d) Nullify suspended sentence.

The trial panel, if acquiring sufficient justifications, can mitigate punishments and implement articles and sections of the Criminal Code on lesser crimes, commute existing punishments to less harsher ones, sustain and suspend jail sentence and reduce the compensation level.

3. The trail panel of the appellate court, if possessing satisfactory grounds, can alter the first-instance court’s judgments, as per Section 1 of this Article, for the defendants filing or facing no appeal.

Article 358. Annulment of the first-instance court’s judgments for re-investigation or retrial

1. The trial panel of the appellate court shall annul the first-instance court’s judgments in the following events:

a) There are grounds demonstrating the first-instance court’s omission of crimes or criminals or the demand for charges and investigation into crimes harsher than those defined in the first-instance court's judgments;

b) The appellate court cannot fulfill the incomplete investigation activities at first instance;

c) Legal proceedings during the stage of investigation or prosecution have constituted serious violations.

2. The trial panel of the appellate court shall annul the first-instance court’s judgments to re-try the case at first instance with a new Trial panel in these events:

a) The composition of the Trial panel of the first-instance court does not abide by this Law;

c) Legal proceedings during the stage of adjudication at first instance have constituted serious violations;

c) The first-instance court issued a verdict of not guilty in favor of a person, who is found to commit crimes through substantial grounds;

d) Grant unjustified exemption of criminal liability, punishment or judicial remedy in favor of the defendant;

dd) Though the first-instance court committed serious errors in the implementation of laws for its passing of judgments, Article 357 of this Law is not applicable for the appellate Trial panel to alter the judgments.

3. The trial panel of the appellate court, when annulling the first-instance court's judgments for re-investigation or retrial, must specify reasons for such invalidation of judgments.

4. The appellate trial panel, when annulling the first-instance court’s judgments for retrial, shall not set, in advance, evidences for the first-instance court to approve or reject or applicable points, sections and articles of the Criminal Code or punishments against the defendants.

5. When the first-instance court's judgments are annulled for re-investigation or retrial but the time limit for the detention of the defendant expires, the appellate Trial panel shall, if finding the need of keeping such defendant in detention, issue a decision to continue the temporary detainment of the defendant until the Procurator or the first-instance court re-handles the case.

In 15 days upon the annulment of the first-instance court's judgments, the case shall be sent to the Procuracy or the first-instance court for general proceedings as per this Law.

Article 359. Annulment of the first-instance court’s judgment and dismissal of the case

1. If one of the justifications as defined in Section 1 and Section 2, Article 157 of this Law exists, the appellate Trial panel shall nullify the first-instance court's judgments, declare the defendant not guilty and dismiss the case.

2. If one of the justifications as defined in Section 3, 4, 5, 6 and 7, Article 157 of this Law exists, the appellate Trial panel shall nullify the first-instance court's judgments and dismiss the case.

Article 360. Re-investigation or retrial of criminal cases

1. After the appellate Trial panel annuls the first-instance court’s judgments for re-investigation, the Investigation authorities, Procuracy and first-instance Court shall be empowered to investigate, prosecute and adjudicate the case again according to this Law.

2. After the appellate Trial panel annuls the first-instance court’s judgments for retrial, the first-instance Court shall be empowered to rehear the case according to this Law.

Article 361. The appellate trial panel’s jurisdiction over the first-instance court’s rulings

1. The appellate trial panel shall have the rights to:

a) Reject appeals and sustain the first-instance Court’s rulings that are deemed justified and conformable to the laws;

b) Alter the first-instance Court’s rulings;

c) Annul the first-instance Court’s rulings and transfer the case to the first-instance court for further settlement of the case.

2. The appellate court’s rulings shall come into force when pronounced.

Article 362. Appellate procedure against the first-instance court’s rulings

1. The appellate Trial panel, when reviewing the first-instance court’s rulings being appealed, must summon to the meeting session the appellant, defense counsels, protectors of litigants’ legitimate rights and benefits, and individuals having interests and duties related to the appeal. The appellate Trial panel, despite the absence of such people, shall hold the meeting session.

2. In 15 days upon the acceptance of the case, the Court must hold the meeting session to examine the first-instance court's rulings being appealed.

In 10 days upon the decision to hold the meeting session, the appellate Trial panel must start the meeting session. The court, in 02 days upon issuing the decision to hold the meeting session, must send the case file and such decision to the equivalent Procuracy.  The procuracy, in 05 days upon receiving the case file, must send the file back to the Court.

3. In the meeting session, a member of the appellate Trial panel shall briefly present the first-instance court's rulings, the details of the appeal and accompanying evidences, documents and items (if any).

The procurator of the equivalent Procuracy must attend the meeting session and express the Procuracy’s opinions on the settlement of the appeal prior to the appellate Trial panel’s issuance of its rulings.