CHAPTER XXII - THE VERDICT
Section 1 APPEAL AGAINST THE FIRST INSTANCE VERDICT Article 292
Right to Appeal and the Deadline for Appeal
(1) An appeal may be filed against the verdict rendered in the first instance within 15 days from the date when the copy of the verdict was delivered.
(2) In complex matters, the Court may, on the motion of the parties or the defense attorney, extend the deadline for filing an appeal for a maximum of 15 days.
(3) Until the Court renders a decision on a motion referred to in Paragraph 2 of this Article, the deadline for filing an appeal shall not run.
(4) An appeal filed on time shall stay the execution of the verdict.
Article 293 Subjects of the Appeal
(1) The parties, the defense attorney and the injured party may file an appeal.
(2) An appeal on behalf of the accused may also be filed by his legal representative, spouse or extramarital partner, parent or child and adoptive parent or adopted child. In this case, the period allowed for the appeal shall run from the day when the accused or his defense attorney was delivered a copy of the verdict.
(3) The Prosecutor may file an appeal to the detriment or to the benefit of the accused.
(4) The injured party may contest the verdict only with respect to the decision of the Court on costs of the criminal proceedings and with respect to the decision on the claim under property law.
(5) An appeal may also be filed by a person whose item was forfeited or from whom the property gain obtained by a criminal offense was forfeited.
(6) The defense attorney and persons referred to in Paragraph 2 of this Article may file an appeal even without the separate authorization of the accused, but not against the accused’s will, unless a sentence of long period imprisonment was pronounced on the accused.
Article 294
Waiving and Abandoning an Appeal
(1) The accused may waive the right to appeal only after the verdict has been delivered to him.
The accused may waive the right to appeal even before that date if the Prosecutor has waived the right to appeal, unless under the verdict the accused must serve a prison sentence. The accused may abandon an appeal already filed that is pending with the Panel of the Appellate Division.
(2) The Prosecutor may waive the right to appeal from the moment when the verdict is announced to the end of the period allowed for filing an appeal, and the Prosecutor may abandon an appeal already filed that is pending with the Panel of the Appellate Division.
(3) The waiving and abandonment of an appeal may not be revoked.
Article 295
Contents of Appeal and Removing the Shortcomings of the Appeal (1) An appeal should include:
a) an indication of the verdict being appealed, including the name of the Court, the number and the date of the verdict;
b) the grounds for contesting the verdict;
c) the reasoning behind the appeal;
d) a proposal for the contested verdict to be fully or partially reversed, or revised;
e) at the end, the signature of the appellant.
(2) If an appeal has been filed by the accused or another person referred to in Article 293, Paragraph 2 of this Code, and the accused does not have defense attorney, or if the appeal has been filed by an injured party who has no power of attorney, and the appeal has not been drawn up in conformity with the provisions of Paragraph 1 of this Article, the Court shall call upon the appellant to supplement the appeal in writing or orally with the Court by a certain
date. If the appellant fails to respond, the Court shall reject the appeal if it does not contain the data referred to in Item b), c), and e) of Paragraph 1 of this Article; if the appeal does not contain the data referred to in Item a) of Paragraph 1 of this Article, it shall be rejected if it cannot be ascertained to what verdict it pertains. If the appeal has been filed in favor of the defendant, it shall be delivered to the Panel of the Appellate Division if it can be established to what verdict it pertains, otherwise, the appeal shall be rejected.
(3) If an appeal was filed by the injured party who is represented by a power of attorney or filed by the Prosecutor, and an appeal does not contain the data referred to in Items b), c), and e) of Paragraph 1 of this Article or data referred to in Item a) of Paragraph 1 of this Article, and it cannot be ascertained to what verdict the appeal pertains, the appeal shall be rejected. An appeal that lacks the aforesaid data filed in the favor of the accused who is represented by the defense attorney, shall be delivered to the Panel of Appellate Division if it can be ascertained to what verdict the appeal pertains, and if it can not be ascertained, then it shall be rejected.
(4) New facts and new evidence, which despite due attention and cautiousness were not presented at the main trial, may be presented in the appeal. The appellant must cite the reasons why he did not present them previously. In referring to new facts, the appellant must cite the evidence that would allegedly prove these facts; in referring to new evidence, he must cite the facts that he wants to prove with that evidence.
Article 296 Grounds for Appeal A verdict may be contested on the grounds of:
a) an essential violation of the provisions of criminal procedure;
b) a violation of the criminal code;
c) the state of the facts being erroneously or incompletely established;
d) the decision as to the sanctions, the forfeiture of property gain, costs of criminal proceedings, claims under property law and announcement of the verdict through the media.
Article 297
Essential Violations of the Criminal Procedure Provisions
(1) The following constitute an essential violation of the provisions of criminal procedure:
a) if the Court was improperly composed in its membership or if a judge participated in pronouncing the verdict who did not participate in the main trial or who was disqualified from trying the case by a final decision;
b) if a judge who should have been disqualified participated in the main trial;
c) if the main trial was held in the absence of a person whose presence at the main trial was required by law, or if in the main trial the defendant, defense attorney or the injured party, in spite of his petition was denied the use of his own language at the main trial and the opportunity to follow the course of the main trial in his language;
d) if the right to defense was violated;
e) if the public was unlawfully excluded from the main trial;
f) if the Court violated the rules of criminal procedure on the question of whether there existed an approval of the competent authority;
g) if the Court reached a verdict and was not competent, or if the Court rejected the charges improperly due to a lack of competent jurisdiction;
h) if, in its verdict, the Court did not entirely resolve the contents of the charge;
i) if the verdict is based on evidence that may not be used as the basis of a verdict under the provisions of this Code;
j) if the charge has been exceeded;
k) if the wording of the verdict was incomprehensible, internally contradictory or contradicted the grounds of the verdict or if the verdict had no grounds at all or if it did not cite reasons concerning the decisive facts.
(2) There is also a substantial violation of the principles of criminal procedure if the Court has not applied or has improperly applied some provisions of this Code to the preparation of the main trial or during the main trial or in rendering the verdict, and this affected or could have affected the rendering of a lawful and proper verdict.
Article 298
Violations of the Criminal Code The following points shall constitute a violation of the Criminal Code:
a) as to whether the act for which the accused is being prosecuted constitutes a criminal offense;
b) as to whether the circumstances exist that preclude criminal responsibility;
c) as to whether the circumstances exist that preclude criminal prosecution, and especially as to whether the statute of limitation on criminal prosecution applies, or as to whether prosecution is precluded because of amnesty or pardon, or as to whether the cause has already been decided by a legally binding verdict;
d) if a law that could not be applied has been applied to the criminal offense that is the subject matter of the charge;
e) if the decision pronouncing the sentence, suspended sentence or decision pronouncing a security measure or forfeiture of property gain has exceeded the authority that the Court has under the law;
f) if provisions have been violated concerning the crediting of pretrial custody and time served.
Article 299
Incorrectly or Incompletely Established Facts
(1) A verdict may be contested because the state of the facts has been incorrectly or incompletely established when the Court has erroneously established some decisive fact or has failed to establish it.
(2) It shall be taken that the state of facts has been incompletely established when new facts or new evidence so indicates.
Article 300
Decision on the Sentence, the Costs of the Proceeding, the Claim under Property Law and the Announcement of the Verdict
(1) A verdict may be contested because of the decision on the sentence and suspended sentence if the sentence did not exceed legal authority, but the Court did not correctly fashioned the punishment in view of the circumstances that had a bearing on greater or lesser punishment, and also may be contested because the Court applied or failed to apply provisions concerning mitigation of punishment, release from punishment or suspension of sentence though the legal conditions for that existed.
(2) A decision invoking a security measure or forfeiture of property gain may be contested if there is no violation of the law under Article 298, Item e) of this Code, but the Court incorrectly rendered that decision or did not pronounce a security measure or forfeiture of property gain though the legal conditions for that existed. These same reasons may be the grounds for contesting a decision on the costs of the criminal proceedings.
(3) A decision on a claim under property law and a decision on announcing the verdict through the media may be contested when the Court has rendered the decision on these matters contrary to the provisions of law.
Article 301 Filing an Appeal
(1) The appeal shall be filed with the Court in a sufficient number of copies for the Court, for the adverse party and defense attorney to prepare a response.
(2) The judge or the presiding judge shall issue a decision rejecting an appeal that is late (Article 311) or inadmissible (Article 312).
Article 302 An Answer to Appeal
A copy of the appeal shall be submitted to the adverse party and to defense attorney (Article 171) who, within eight (8) days of the date of receipt of the appeal, may file their response to the appeal with the Court. Along with the entire record, the appeal and the response to the appeal, shall be submitted to the Appellate Division.
Article 303 Reporting Judge
(1) When the documents pertaining to the appeal reach the Appeal Division of the Court, the presiding judge of the Appellate Devision shall refer the documents to the presiding judge of the Appellate Panel who shall appoint a reporting judge.
(2) The reporting judge may, if necessary, obtain the report on violations of the provisions of criminal procedure from the judge or the presiding judge of the Panel who rendered a contested verdict, and the reporting judge may inspect the contents of the appeal with respect to new evidence and new facts and obtain necessary reports or documents.
(3) When a reporting judge prepares the documents, the presiding judge of the Panel shall schedule a session of the Panel.
Article 304 Session of the Panel
(1) The Prosecutor, the accused and his defense attorney shall be informed about the session of the Panel.
(2) If the accused is in custody or serving the sentence, his presence shall be ensured.
(3) The session shall open with the presentation of the complainant, and then the other party shall present the answer to the appeal. The Panel may request for any necessary explanation regarding the appeal and the answer to appeal from the parties and the defense attorney present at the session. The parties and the defense attorney may propose that certain documents be read and may, upon the permission from the presiding judge of the Panel, present any necessary explanation for their points in the appeal, or the answer to the appeal without being repetitive.
(4) Failure of the parties and the defense attorney to appear at the session despite being duly summoned shall not preclude the session from being held.
(5) The public may be excluded from the session of the Panel at which the parties and the defense attorney are present only under the conditions stipulated in this Code (from Article 235 through Article 237).
(6) The record of the Panel session shall be added to the case file.
(7) The decision referred to in Article 311 and Article 312 of this Code may be rendered even without informing the parties and the defense attorney about the session of the Panel.
Article 305
Decision Rendered in a Session or on the Basis of a Hearing
The Panel of the Appellate Division shall render a decision in a session of the Panel or on the basis of a hearing.
Article 306
Limits in Reviewing the Verdict
The Panel of the Appellate Division shall review the verdict only insofar as it is contested by the appeal.
Article 307 Ban Reformatio in Peius
If an appeal has been filed only in favor of the accused, the verdict may not be modified to the detriment of the accused.
Article 308
Extended Effect of the Appeal
An appeal filed in favor of the accused due to the state of the facts being erroneously or incompletely established or due to the violation of the Criminal Code shall also contain an appeal of the decision concerning the punishment and forfeiture of the property gain (Article 300).
Article 309 Beneficium cohaesionis
If in ruling on an appeal, regardless of who filed the appeal, the Panel of the Appellate Division finds that the grounds on which the decision was rendered in favor of the accused is also of benefit
to any of the codefendants who did not file an appeal or did not file an appeal along the same lines, it shall ex officio proceed as though such an appeal had been filed.
Article 310
Decisions on the Appeal
(1) In a session of the Panel of the Appellate Division, the Panel may reject the appeal as being late or inadmissible or the Panel may refuse the appeal as unfounded and confirm or modify the verdict of the first instance or revoke the verdict and hold the main trial.
(2) The Panel of the Appellate Division shall decide in a single decision on all appeals against the same verdict.
Article 311
Rejecting the Appeal for Being Late
A decision shall be rendered to reject the appeal for being late if it is found that it was filed after the lawful date.
Article 312
Rejecting the Appeal as Inadmissible
A decision shall be rendered to reject the appeal as inadmissible if it is found that the appeal was filed by a person not authorized to file an appeal or a person who waived the right to appeal, or if it is found that the appeal was abandoned or if after the abandonment the appeal was filed again or the appeal is not allowed under the law.
Article 313 Refusing the Appeal
The Panel of the Appellate Division shall issue a verdict refusing the appeal as unfounded and confirm the verdict of the first instance when it finds that the grounds on which the verdict is contested by the appeal do not exist.
Article 314
Revision of the First Instance Verdict
(1) By honoring an appeal, the Panel of the Appellate Division shall render a verdict revising the verdict of the first instance if the Panel deems that the decisive facts have been correctly ascertained in the verdict of the first instance and that in view of the state of the facts established, a different verdict must be rendered when the law is properly applied, according to the state of the facts and in the case of violations as per Article 297, Paragraph 1, Item f) and j) of this Code.
(2) If due to the revision of the first instance verdict, conditions to order or to terminate the custody pursuant to Article 138, Paragraph 1 and 2 of this Code have been fulfilled, the Panel of the Appellate Division shall issue a separate decision against which an appeal is not allowed.
Article 315
Revoking the First Instance Verdict
(1) By honoring the appeal, the Panel of the Appellate Division shall revoke the first instance verdict and hold a trial if the Panel finds that:
a) major violations of the provisions of the criminal procedure exist, except cases referred to in Article 314, Paragraph 1 of this Code;
b) it is necessary to present new evidence or repeat the evidence presented in the first instance proceedings that caused the state of facts to be erroneously and incompletely established.
(2) The Panel of the Appellate division may also partially revoke the first instance verdict if the certain parts of the verdict can be severed out without causing a detriment to a rightful verdict, and the Panel may hold a trial concerning the certain parts in question.
(3) If the accused is in custody, the Panel of the Appellate Division shall review whether the grounds for custody still exist and the Panel shall issue a decision on extension or termination of the custody. An appeal is not allowed against this decision.
(4) If the accused is in custody, the Panel of the Appellate Division is obligated to issue a decision not later than three (3) months from the day the Panel received documents.
Article 316
Opinion in the Decision on Revoking the First Instance Verdict
In the opinion of the verdict, in the part by which the first instance verdict is revoked or in the decision on revoking the first instance verdict, only brief reasons for revoking the verdict shall be cited.
Article 317
Hearing Before the Panel of the Appellate Division
(1) Provisions that apply to the main trial in the first instance proceeding shall be accordingly applied to a hearing before the Panel of the Appellate Division.
(2) If the Panel of the Appellate Division finds that it is necessary to repeat the evidence presented in the first instance proceeding, testimony of examined witnesses and experts and written findings and opinions of experts shall be admitted as evidence if those witnesses and experts
(2) If the Panel of the Appellate Division finds that it is necessary to repeat the evidence presented in the first instance proceeding, testimony of examined witnesses and experts and written findings and opinions of experts shall be admitted as evidence if those witnesses and experts