PART IX
APPEALING FROM COURT DECREES OF CONVICTION OR ACQUITTAL, COURT DECREES OR ORDERS AND LODGING COMPLAINT OR PROTEST TO COURT OF SUPERVISORY INSTANCES

CHAPTER THIRTY SIX
LODGING COMPLAINT OR PROTEST TO COURT OF APPELLATE INSTANCE

Article 303. Persons Authorized to Lodge Appeal or Protest on Court Decree

303.1. Convict, victim, their defense counsel and legal representative shall have the right to file an
appeal on a decree of a court and the state prosecutor shall have a right to write a protest on the decree.

303.2. A civil plaintiff, civil defendant, and their representatives shall have the right to file an appeal only on respective part of the court decree that relates to the civil suit.

303.3. A person acquitted by a court shall have the right to file an appeal on reasons and grounds of acquittal specified in the decree of acquittal.


Article 304. Appeal from and Protest of Decree By Way of Appeal

304.1. Appeals from and protests of a court decree of a court shall be filed by persons who have right to file appeal or protest to the Aimag or Capital City Court within 10 days after the decree has been handed or acquainted.

304.2. During the period established in Article 304.1. of this Law, the file of the case may not be
acquired from the court.

304.3. The appeals and protests shall be filed through the court which decreed the decree.


Article 305. Notification on filing of Protest and Appeals

305.1. A court shall notify the authorized persons indicated in Article 303 of this Law that a protest has been brought or an appeal filed. Court may obtain explanation on that in written.

305.2. Explanations on an appeal or protest against a decree of court of first instance shall be attached to the file of the case.


Article 306. Consequences of filing Protest and Appeals

306.1. In the event of filing a appeal or protest on a decree of the court of first instance, parties shall be notified to such effect. Upon expiration of the term established in article 304 of this Law, the case with the appeals and protests shall be referred to the Aimag and Capital City Court and execution of the decree shall be suspended.

306.2. Court shall not accept an appeal or protest filed after lapse of the term set forth in Article 304 of this Law.

306.3. Before commencement of the judicial session at the appellate instance, the person who has filed an appeal or protest against a court decree as well a procurator of higher instance shall have the right to withdraw back his/her appeal or a protest submitted by a procurator of lower instance.

306.4. In event that the term for appealing from or protesting a decree has lapsed for valid reasons, a request to extend the lapsed term with indication of the reasons and proof for the lapse may be submitted to court which has decreed the decree.

306.5. The request on reinstating the term shall be resolved by ruling of a judge, who shall have the right to summon the person who has submitted the request to obtain explanations.

306.6. In case of reinstating the lapsed term, an order to such effect shall be attached to the case and delivered to the court of an aimag or Capital City together with an appeal or protest.

306.7. A ruling of a judge declining the request to reinstate a lapsed term may be appealed from or protested in the usual manner to a higher court, which shall have the right to reinstate the lapsed term and consider the case on appeal or protest.


Article 307. Instances hindering Appealing From and Protesting Decree of Court or Ruling of Judge

307.1. Court decrees or judge orders issued in instances provided for by Articles 222, 223, 227, 228, 229, 230, 240, 247, 249, 250, 252, 260, 263, 269, 271, 274, 288, 341, 374, 375 and 376 of this Law shall not be subject to appeal or protest.


Article 308. Limits for Consideration of Case in Appellate Instance

308.1. When considering a case by way of appeal, a court shall verify the legality and the well-founded nature of the decree based on materials of the case.

308.2. The court shall not be bound by the arguments of the appeal or protest and shall verify the case as a whole with respect to all defendants without regard of whether other defendants have filed protests or appeals.


CHAPTER THIRTY SEVEN
PROCEEDINGS OF THE COURT OF APPELLATE INSTANCE


Article 309. Term for Consideration of Case in Court of Appellate Instance

309.1. An appellate instance court shall consider a case on appeal or protest not later than 30 days, from the receipt of the case.

309.2. If it is impossible to consider the case within time period set forth in Article 309.1. of this Law, the term may be extended up to 30 days by an order of Chief Judge of that particular court.

309.3. The day set for consideration of a case shall be announced prior to three days before its
consideration.


Article 310. Appointing Chair of Judicial Session of Appellate Instance

310.1. Chief Judge of aimag and the Capital City shall receive the case submitted on appeal or protest, appoint the chair of the judicial session and transfer the case.


Article 311. Participation of Procurator or Defense Counsel in Judicial Session of Appellate Instance

311.1. The procurator and defense counsel shall have a right to participate in the session of the court considering the case by way of appeal and if they requested so, their participation in the session shall be obligatory.

311.2. Nonappearance of the said persons, except in cases provided in Article 311.1. of this Law, shall not obstruct its consideration.

Article 312. Other Persons Participating in Consideration of Case by Way of Appeal

312.1. A sentenced or acquitted person, victim, as well as civil plaintiff, civil defendant and their
representatives shall have a right to participate in the judicial session considering the case by way of appeal. Nonappearance of the said persons, shall not obstruct consideration of the case.

312.2. Participation in the judicial session of a convict who has submitted to participate in it may be
allowed.

Article 313. Procedure for Consideration of Case in Appellate Instance

313.1. The chair of the judicial session shall open the session and shall announce which case is subject to consideration.

313.2. After presenting the appearance of persons for the judicial session by the secretary, the person who preside the judicial session shall announce the composition of the court, present the court secretary, the procurator, defendant, victim, civil plaintiff, civil defendant, their defense counsel, and representatives, expert or translator, interpreter who have appeared for the judicial session and shall ask the participants of the case whether they have any challenges to them. In the event of challenge the request shall be considered and resolved in accordance with procedures specified in this Law.

313.3. After completing proceedings set forth in Article 313..2. of this Law, one of the members of the court shall report the case, which shall set forth the substance of the case and the arguments of the appeal or protests.

313.4. After the report, the person who has filed an appeal shall explain its appeal or protest, the court shall examine the supplementary evidence, and hear participants explanations and the conclusion of the procurator and additional explanations of the sentenced or acquitted person and his defense counsel and shall retire to the conference room to render a ruling.

313.5. The order of the judicial session and measures taken with respect to violators shall be
determined by the rules of Articles 251 and 252 of this Law.


Article 314. Records of the Judicial Session of Appellate instance

314.1. The secretary shall prepare the records in accordance with the rules set forth in Article 253.2. of this Law and attach to the case in instances when participants take part in judicial session of appellate instance.

314.2. Proposals to make corrections in the records of the judicial session shall be submitted and
considered subject to procedures specified in Articles 253.6 – 253.8 of this Law.

314.3. The chair of the judicial session shall be obliged to provide participants of the judicial session with an opportunity to be acquainted with the records.


Article 315. Rendering of Ruling

315.1. After considering the case at judicial session of appellate instance the court shall render one of the following decisions:

315.1.1. to leave the decree unchanged and the appeals or protests unsatisfied;

315.1.2. to annul the decree and refer the case for inquiry or investigation or for consideration at judicial session of the first instance;

315.1.3. to annul the decree and terminate the case;

315.1.4. to make changes into the decree.

315.2. In rendering a ruling, the court shall be guided by the requirements of Articles 313 and 317 of this Law and the ruling shall be read an announced by the chair of the judicial session.


Article 316. Grounds for Annulling Decree of Acquittal

316.1. A court of appellate instance may annul the decree of acquittal on protest of a procurator or on appeal of a victim or his/her representatives or on appeal of a person acquitted by a court who has not agreed to the grounds of his/her acquittal.


Article 317. Grounds for Annulling or Changing Decree

317.1. If there exist one of the following grounds the court of appellate instance shall annul or change a decree:

317.1.1. one-sidedness or incompleteness of the inquiry, investigation or court litigation;

317.1.2. lack of correspondence of the court's findings set forth in the decree, with the factual circumstances of the case;

317.1.3. substantial violation of the Criminal Procedure Code;

317.1.4. incorrect application of the criminal law or requirement to apply a law imposing grave sentencing.


Article 318. One-sidedness or Incompleteness of Inquiry, Investigation or Court Litigation

318.1. Inquiry or investigation or court litigation shall be deemed one-sided or incomplete if it has left circumstances not clarified, establishment of which might have had substantial significance in issuing the decree.

318.2. Except in cases provided in Article 318.1. of this Law an inquiry, investigation or court litigation shall be deemed one-sided or incomplete in following instances:

318.2.1. persons have not been interrogated whose testimony might have substantial significance for the case, or expert examination has not been carried out when the carry out of it is legally obligatory, or documents or real evidence of substantial significance have not been acquired;

318.2.2. data concerning the personality of the accused or defendant are not established with sufficient completeness;

318.2.3. provisions of the decree and ruling of a court that has transferred the case for inquiry, investigation or court litigation have not been observed.


Article 319. Lack of Correspondence of Court's Findings Set Forth in Decree, With Factual Circumstances of Case

319.1. A conclusion of court mentioned in decree shall be deemed not to correspond with the factual circumstances of a case if there exist one of the following circumstances:

319.1.1. if the findings are not corroborated by the evidence considered at the judicial session;

319.1.2. if the court has not taken into account circumstances which might have substantially influenced the court's findings;

319.1.3. when there exists contradictory evidence of substantial significance for the court's findings, the decree does not indicate on what grounds the court has accepted some evidence and rejected other evidence;

319.1.4. if the court's findings, set forth in the decree, contain substantial contradictions which influenced or might have influenced decision of the question of the guilt or innocence of the convicted or acquitted person, the correctness of the application of the criminal law, or correct sentencing of conviction.


Article 320. Substantial Violation of the Criminal Procedure Law

320.1. Those violations of the requirements of the articles of this Law which, by depriving or restricting the rights guaranteed by law of participants in a case during consideration of the case or otherwise, have prevented a court from thoroughly examining the case and have influenced or might have influenced the issuing of a legal and well-founded decree shall be deemed substantial violations of the criminal procedure law. A decree shall be subject to being annulled in any following event if:

320.1.1. the decree is rendered by an illegally constituted court;

320.1.2. the case is considered in the absence of the defendant in instances when his/her presence is legally obligatory;

320.1.3. suspect, accused, or defendant was not provided with an opportunity to be defended;

320.1.4. the secrecy of the judges' conference carried out in conference room is revealed;

320.1.5. the decree is not signed by one of the judges;

320.1.6. the file of the case lacks a record of the judicial session;

320.1.7. provision of law that requires obligatory participation of citizens' representative in judicial session was violated.


Article 321. Incorrect Application of Criminal Law

321.1. If one of the following conditions exists, it shall constitute incorrect application of the criminal law:

321.1.1. failure of a court to apply the applicable law;

321.1.2. application of law that should not be applied;

321.1.3. incorrect interpretation of a law contradicting its precise meaning.


Article 322. Consequences of Annulling Decree With Referral of Case for inquiry and investigation

322.1. In referring a case for new consideration, a court shall indicate in its ruling whether the case is transferred to inquiry, investigation or court, as well the stage of judicial examination from which proceeding should commence.

322.2. In the event that a decree is annulled because of violations committed during consideration of the case in court, the case shall be referred for a new consideration to the court which has decreed decree, but with other members, or to another court.

322.3. When case of a person, who was serving the sentence after being considered guilty and
convicted by the court, or who has served the sentence is referred to an inquiry or investigation, such case shall be subject to obligatory consideration of the court, which shall render the final decision on it.

322.4. Article 323.3. of this Law shall also apply to resolution of the case that was referred to inquiry or investigation by way of supervision or due to newly discovered circumstances.


Article 323. Annulling of Decree of Conviction With Termination of Cases

323.1. In considering a case by way of appeal, a court shall annul a decree of conviction and terminate the case in the following instances:

323.1.1. if there exist grounds indicated in Article 24 of this Law;

323.1.2. if the evidence considered by the court of first instance does not corroborate the accusation presented to the defendant and there are no grounds for carrying out a supplementary inquiry, investigation or a new judicial consideration.


Article 324. Changing a Decree

324.1. If, during consideration of a case by way of appeal, it is established that the criminal law has been incorrectly applied by the court of first instance or the conviction that has been assigned lacks correspondence with the gravity of the crime or with the personality of the convicted person, the appellate instance may introduce changes into the decree applying the law assigning less graver conviction.

324.2. If a judge considers that conviction assigned to the defendant was unduly moderate, the court of the appellate instance shall annul the decree and refer the case to the court of first instance for a new consideration.

324.3. The appellate instance shall not have the right to introduce changes into the decree based on circumstances not established by the court of first instance or on evidence rejected by it.


Article 325. Ruling of Court of Appellate Instance

325.1. The ruling of a court of appellate instance shall indicate the following:

325.1.1. the time and place of rendering the ruling;

325.1.2. the court or composition of the court which has rendered the ruling and other persons who have participated in consideration of the case in the court of appellate instance;

325.1.3. the summary of the judgement rendered by the court of first instance;

325.1.4. the person who has brought the appeal or protest, summary of the appeal or protest or its grounds;

325.1.5. the decision of the court of appellate instance concerning the appeal or protest and its ground.

Article 326. Execution of Ruling of the Court of Appellate Instance

326.1. A ruling of the court of appellate instance shall be executed immediately after its proclamation.

326.2. The appeal or protest shall be attached to the file of the case.