PART 10. PROCEEDINGS IN APPELLATE COURT

CHAPTER 47. CONSIDERATION OF THE CASE IN THE APPELLATE COURT

Article 395. Grounds for turning down or changing the verdict or decision of the first instance court

criminal law was not adequately applied;

PART 10. PROCEEDINGS IN APPELLATE COURT

CHAPTER 47. CONSIDERATION OF THE CASE IN THE APPELLATE COURT

Article 395. Grounds for turning down or changing the verdict or decision of the first instance court

there are essential breaches of proceedings law;

PART 10. PROCEEDINGS IN APPELLATE COURT

CHAPTER 47. CONSIDERATION OF THE CASE IN THE APPELLATE COURT

Article 397. Incorrect application of criminal law

Incorrect application of criminal law means the application of the article of the RoA Penal Code or part of the article which was not liable to be applied, the failure to apply the article or part of an article which was applicable, incorrect interpretation of law which contradicts with its true sense.
Having found as a result of the case, that the action has not been correctly qualified in legal terms, the appellate court is entitled to replace the qualification of the crime with the article of the Penal Code which envisages responsibility for a less severe crime.
As a result of consideration of the case, the appellate court is entitled, within the brought charges, to apply a law for more severe crime or appoint a more strict punishment only when the prosecutor made an appeal on that basis, as well as the injured or his representative.

PART 10. PROCEEDINGS IN APPELLATE COURT

CHAPTER 47. CONSIDERATION OF THE CASE IN THE APPELLATE COURT

Article 398. Essential breach of procedural law

Essential breach of procedural law is the breach of the principles of this Code and other general provisions which, through limitation or deprivation of legally guaranteed rights of the case participants, prevented the complete, objective and comprehensive examination of the case, affected or can affect the adequate decision making.
The verdict must turned down when lopsided or incomplete trial is the reason for erroneous withdrawal of permissible evidence from the case or ungrounded dismissal of a petition of a party on the examination of an evidence, which could be significant for the case.
The verdict is liable to be turned down in all cases, if:
in the case of grounds for termination of criminal proceedings or criminal prosecution, the first instance court did not terminate the proceedings or did not terminate the prosecution; the verdict was adopted by an illegal composition of the court;
the case was considered in the absence of the defendant;
the case was considered in the absence of the defense lawyer, when his participation, according to law, was mandatory, or the defendant's right for defense was otherwise violated;
the defendant's right to use his mother tongue and an interpreter in court was breached; the defendant was deprived of the right to participate in the court argument;
the defendant was deprived of the right for the last word;
the principle of secrecy in making the verdict was breached;
there are no court session protocols in the case;
there is no descriptive and argumentative part in the verdict;
the jurisdiction if case investigation was breached.
Having found that the first instance court made breaches envisaged in paragraphs 2-11 of part 2 of this article, the appellate court turns down the verdict and adopts a new verdict, and in cases envisaged in paragraph 1, turns down the verdict and terminates the proceedings and criminal prosecution.
If the first instance court made another essential breach of procedural law, the appellate court conducts a court investigation, taking measures to eliminate the breaches, turns down the verdict of the first instance court and having taken the results of the investigation, makes a new verdict.
The appellate court turns down the verdict and sends the case for additional investigation, if breaches of procedural law were made which affected the objective, comprehensive and complete investigations of the case and which can not be eliminated by court investigation.