PART 10. PROCEEDINGS IN APPELLATE COURT
CHAPTER 46. APPEAL
Article 376. The right to appeal
The convict, the acquitted person, their defense lawyers and legal representatives and the prosecutor are entitled to appeal against the verdicts and decisions of the first instance court which have not came into legal force. The civil claimant and the civil defendant or their representatives are entitled to appeal in the part of the civil claim. The injured and his representatives can make an appeal only on the cases instituted on the basis of the complaint of the injured person.
The prosecuting attorney who participated in the case as the prosecutor is entitled to appeal the case. The prosecutor is not entitled to appeal the verdict in the part of the civil claim.
Persons who do not participate in the case as parties also are entitled to appeal on the civil claim, if the verdict or the decision concerns their interests.
Article 377. The court considering appealed cases
The cases appealed against the verdicts and decisions of the first instance court are considered in the appellate court of criminal and military cases (referred to below as the appellate court).
Article 378. Procedure of filing the appeal
The appeal is submitted to the appellate court and its copy is submitted to the court which made the verdict, in accordance with requirements specified in article 382 and article 383, part 2.
Article 379. Deadlines of filing the appeal
The appeal is filed with 15 days after the publicizing of the verdict of the first instance court.
The appeals filed after this deadline are left without consideration.
Article 380. Procedure of recovering the appeal deadline
In the case of missing the established deadline for appeal for good motives, the persons entitled to appeal can petition to the court, which took the decision or verdict to recover the missed deadline. The petition for the recovery of the missed deadline is considered at a court session by the court which took the decision or verdict, which is entitled to summon the person who submitted the petition for explanations.
The decision to turn down the petition on the recovery of the missed deadline, within 10 days, can be appealed in the appellate court, which is entitled to recover the missed deadline and consider the case observing the requirements specified in article 382 and 383, part 2 of this Code.
In the case of satisfying the petition, the verdict or decision are suspended.
Article 381. Appeal
The appeal must contain:
the name of the court to which the appeal is addressed;
data on the applicant, indicating his procedural status, place of residence or accommodation;
the verdict or decision which is appealed against and the name of the court which made the decision;
a note on whether the verdict or decision is appealed against in full or partially;
the conclusions of the applicant on what are the inaccuracies of the verdict or decision and the essence of the appeal;
if any, other proofs, with which the applicant supports one's demands and which must be examined in the appellate court, including the proofs which the first instance court previously did not consider;
the list of materials attached to the appeal;
the signature of the applicant.
In the case when the appeal does not conform with the above requirements, which prevent the case from being considered, the appeal is regarded as filed but is returned by the court for repeated compilation and a concrete deadline is mentioned. This deadline is not included into the deadline for consideration of cases in the appellate court. In the case of failure to submit the appeal within the deadline appointed for repeated compilation, the appeal is regarded as not filed.
Article 382. Notification about the filed appeal
The court, which made the decision or verdict notifies about the filed appeal the convict or the acquitted parson, the accused, the injured persons and his representatives, the civil claimant, the civil defendant and their representatives, if the appeal concerns their interests. The copy of the appeal is sent to these persons with clarification that they have an opportunity to make written objections to the appeal, and the deadline for the objections.
The received objections to the appeal are attached to the case.
The parties are entitled to present new materials to support their appeal and the objections of the other party to that appeal, or petition to summon the witness or expert whey mention.
Article 383. Consequences of appeal
The appeal against the verdict suspends the verdict preventing it from coming into legal force.
When the deadline for appeal expires, the court which made the decision or verdict forwards the case together with the objections to the appeal to the appellate court and notifies the parties about that.
The applicant is entitled to revoke the appeal before the beginning of the session in the appelate court.
Article 384. Decisions made in the first instance court which are liable to appeal
According to the rules of this chapter, only the final decision of the court is liable to appeal, if not otherwise specified in this Code.
CHAPTER 47. CONSIDERATION OF THE CASE IN THE APPELLATE COURT
Article 385. Limits to consideration of the case in the appellate court
The appellate court is not restricted with the appeal and can consider the case in complete scale as well as the additional proofs contained in the case.
Article 386. The subject of the appeal
Based on the appeal, the appellate court checks the adequacy of discovery of factual circumstances and application of criminal law in the case, as well as the observance of procedural law during the consideration and resolution of the case.
Article 387. The composition of the court considering the appeal against the case The case is considered in the appellate court by three judges, one of them is the chairman.
Article 388. The date of beginning of consideration in the appellate court
Based on the appeal, the appellate court begins the consideration of the received cases no later than in 15 days after the receipt of the appeal, however, not earlier than 10 after the expiration of the appeal of the verdict. In the case of good motives, this deadline can be extended by court decision, but not more than 10 days.
Article 389. Appointment of the session of the appellate court
After the receipt of the case in the appellate court, it is handed to the chairman of the court.
Having examined the received case, the chairman by his decision appoints the consideration of the case in the court.
The following issues must be resolved in the decision to appoint a court session: the venue and time of the consideration of the case; based on the need to check the legitimacy and justification of the verdict, the amount of evidences is examined at the court session, the witness summoned to the court session, the expert and other persons, if necessary, the maintenance of the prevention measures towards the convict, and the issue of closed-door session, as envisaged in this Code.
Article 390. Procedure of consideration of the case in the appellate court
Consideration of cases in the appellate court is done in accordance with rules established for the consideration of cases in first instance courts and also as specifies in this Code. The parties are notified about the venue and time of the consideration of the case. The failure of persons who did not appeal the verdict or the decision to come does not prevent the consideration of the case and adoption of a decision.
The participation of the following in the session is mandatory for the following: the prosecutor;
the defendant who submitted the appeal, or for whose interests the lawyer or the legal representative submitted an appeal, or when the prosecutor submitted the appeal not in favor of the convict.
The lawyer, in cases envisaged in article 69 of this Code.
Article 391. Trial in the appellate court
The trial begins with the chairman's announcement of the essence of the content of the verdict as well as the appeal and the objections to the appeal.
After the report of the chairman, the court hears the speech of the party, which justifies the conclusions made in the appeal and the objections of the opposite party, which did not appeal to the verdict.
After having heard the speeches of the parties, the court checks the evidences by means of interrogation of the summoned defendant, witness and the injured, as well as, by petition of the parties or its own initiative, publicizes the documents, protocols and other materials of the case. The examination procedure of evidences is determined by the court, after having heard the opinions of the parties.
The evidences examined in the first instance court are examined in the appellate court, if it is considered necessary, by petition of a party or the court's initiative.
The parties are entitled to file petitions, i.e., to summon new witnesses, appoint expert examination, demand material evidence or documents. The filed petitions are resolved by the rules established in article 331, the appellate court can not reject the petitions on the grounds that they were not satisfied in the first instance court.
Article 392. Court deliberations: the last word of the defendant
After having finished the examination of evidences, the chairman asks the parties whether they petition to complete the trial and having resolved these petitions, starts the court deliberations.
Court deliberations are conducted by rules established in article 354 of this Code, and the first to take the floor is the applicant.
After having finished court deliberations, the chairman gives the defendant the opportunity of the last word, after which the court retreats to the deliberations room.
Article 393. Adopting the verdict
As a result of the consideration of the appeal, the appellate court adopts a verdict which completely or in part replaces the verdict adopted by the first instance court.
The appellate court adopts the verdict by the general rules specified in this Code, taking into account the requirements established in this article.
During the conference of judges, only the judges participating the court for this case can be in the deliberations room. The presence of other persons is not allowed. The judges can not publicize the opinions expressed during the conference.
In the verdict of the appellate court the following should be mentioned: on what grounds verdict of the first instant court is considered correct, and why the conclusions in the appeal are groundless, what were the grounds for the change in the verdict of the first instance court, completely or partially.
The chairman raises the issues for resolution of the court in the sequence and formulation mentioned in articles 360-362 of this Code.
Each judge must give a positive or negative answer to each question. The judges can not abstain from voting. The chairman votes last.
Issues are resolved by simple majority of votes.
For each issue mentioned in article 360 of this Code, first of all, the most favorable proposal for the defendant is voted.
In the case of a special opinion of the judge, is entitled to present it in the written form within 3 days after announcement of the verdict. The special opinion is handed to the chairman and attached by him to the case in a closed envelope which can be opened only during the consideration of the case in the cassation court.
When making decisions, the appellate court is entitled to support its decisions with the testimonies made by persons interrogated in the fist instance court but not summoned to the appellate court session.
The whole verdict and each page of it must be signed by all judges. The judge with a special opinion also signs the verdict.
Corrections in the verdict must agreed upon and approved by the signature of all judges, in the deliberations room prior to the announcement of the verdict.
Announcement of the verdict is done as established in the rules of article 373 of this Code.
Article 394. Decisions made by the appellate court
As a result of consideration of the case, the appellate court makes one of the following decisions:
leaves the verdict or decision of the first instance court unchanged, and the appeal unsatisfied;
turns down the convicting verdict of the first instance court and makes an acquitting verdict or terminates the proceedings and the criminal prosecution;
turns down the acquitting verdict of the first instance court and makes a convicting verdict; changes the verdict or decision of the first instance court;
turns down the verdict or decision and based on article 311 of this Code sends the case to additional preliminary investigation.
Article 395. Grounds for turning down or changing the verdict or decision of the first instance court
The verdict or decision of the first instance court is turned down or changed and a new verdict or decision is made, if:
the conclusions made in the verdict on the factual circumstances do not correspond to evidences examined in the appellate court;
criminal law was not adequately applied;
there are essential breaches of proceedings law;
the punishment in the verdict does not correspond to the severity of the committed crime and the personality of the defendant.
Article 396. Discrepancies between the conclusions made in the verdict or decision on the factual circumstances of the case and evidences examined in the appellate court
Having revealed that the conclusions in the verdict or decision of the first instance court on factual circumstances do not correspond to the evidences examined in the appellate court, the appellate court, completely or partially, turns down the verdict and adopts a new verdict in accordance with the results of the trial.
The appellate court, having assessed the examined evidences during its trial, is entitled to regard as proved those facts which have not been confirmed or have not been taken into account in the verdict of the first instance 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.
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.
Article 399. Inadequacy of the appointed punishment to the severity of the crime and the defendant's personality
Having found that the punishment appointed in the verdict is obviously unjustly strict, does not correspond to the severity of the crime and the defendant's personality, the appellate court reduces the punishment, governed by general principles of appointing punishment. The appellate court can appoint a more strict punishment to the defendant than in the verdict of the first instance court only when the appeal was made by the prosecutor as well as the injured or his representative.
Article 400. Turning down or changing an acquittal
The appellate court can turn down an acquittal and adopt a prosecuting sentence, in the case of an appeal on the unjustified acquittal filed by the prosecutor, the injured or his representative.
An acquittal can be changed, based on the appeal of the acquitted concerning the grounds for acquittal.
Article 401. Protocol of the session of the appellate court
In the appellate court the court secretary conducts the protocol in accordance with the envisaged rules in article 315 of this Code. The parties can make comments on the protocol which the chairman considers as envisaged in article 316 of this Code.
Article 402. Verdict or decision of the appellate court coming into legal force and handing the verdict or decision to the parties
The verdict or decision of the appellate court come into legal force in 10 days after the announcement.
No later than in 3 days after the announcement, the verdict or decision are handed to the convict, the acquitted, their lawyers and legal representatives, the prosecutor, the injured and his representatives, the civil claimant, the civil defendant or their representatives, if they participated in the consideration of the case in the appellate court.
Appeal against decision of acquittal or conviction or against sentence - national proceedings
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