Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Objecting to the Primary Court’s Decision

Article 246:

(1) If the accused or their legal representative and the prosecutor are not satisfied with the primary court’s decision, they shall present their objections directly or through a deciding court to a relevant appellate court according to the provisions of law.

(2) Objections to the primary court’s decision for obscenities shall be made in the following instances:

1– Objection by the convict shall be made in case the verdict has been issued on other than cash fine.

2– Objection shall be made by the prosecutor in case the acquittal decision of the accused has been issued.

(3) Objection to the primary court’s decision for misdemeanors shall be made in the following instances:

1– Objection by the convict shall be accepted when imprisonment or cash fine or both have been anticipated in the law and the court has issued the imprisonment order.

2– Objection by the prosecutor to the court decision when imprisonment or cash fine or both have been anticipated in the law and the court decision includes only a cash fine or less than half of maximum punishment anticipated in the law.

(4) Other than conditions set forth in paragraphs (2) and (3) of this article, the accused person and the prosecutor cannot appeal the decision, unless the objectionable decision is in contradiction with the law or there is an error in its implementation or interpretation, or the decision is revoked or the proceeding that affected the sentence is revoked.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Objection in Indivisible Crimes

Article 247:

(1) An objection to a decision on indivisibly related crimes can be made, although the objector may only have the right to object over some of these crimes.

(2) The accused person’s objections are valid only for the objector.

(3) If a single crime includes multiple defendants and the cases are investigated jointly, anyone of them can partake in each other’s objection by submitting a request.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Objecting Authority or Lack of Authority

Article 248:

One or more than one accused in a single case may contest the verdict issued by a non- competent court. These objections are applicable to all of the accused of the case.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Deadline for Submitting the Objection

Article 252:

(1) Objecting to the primary court’s decision shall be made in writing or orally.

(2) Parties involved in the criminal case, who in accordance with the provisions of this law have the right to appeal, can directly express their objection in the judicial session after being notified of the decision. In this case, their statements are recorded in the registry.

(3) The convict’s disagreement with the issued sentence represents their objection.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Objection Issues

Article 253:

(1) An objection against the court’s decision contains the following information:

1– Name of the court that issued the contested decision

2– Complete personal information of the person making the objection.

3– Number of court decision or sentence sheet.

4– Clear and explicit reasons for the objection in accordance with the provisions of law.

(2) An objection against the decision by the accused person, plaintiff, defendant or their legal representatives and the prosecutor shall be made to the appeal court’s correspondence office within 20 days after notification of the decision and the objection shall be verified by the court’s correspondence office and a receipt shall be issued.

(3) In those circumstances where the prosecutor is allowed to appeal against the primary court’s decision in criminal cases according to the provision of this law, the Head of AppellateProsecution Office can appeal against the primary prosecutor’s decision in misdemeanor and felony cases within 10 days after the order is received by the correspondence office, and in felony cases against the decision of the Head of Appellate Prosecution Office within 20 days after the order is received by the correspondence office. The reason for objection should also be submitted within this time limit.

(4) The time limit for presenting an appeal in misdemeanor and felony cases will be counted from the time that the verdict is officially notified to the convict based on the provisions of this law.

Section 3 Trial

Chapter 11 Case Proceedings in a Appeals Court

Extending the Objection Period

Article 254:

If one of the litigants presents their objection against the decision on the last hours of last official day of the specified period set forth in paragraphs (2) and (3) of article 253 of this law, the objection period of the opposing party shall be extended for another 5 days after the expiration date of the primary deadline for the purpose of presenting reasons or rejecting them.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Setting the Date of a Hearing Session

Article 255:

When the objection is submitted to the appeals court, the relevant correspondence office is obligated to record the date the objection was submitted and to set a hearing session date for the objection observing paragraphs (2) and (3) of article 253 of this law.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Circumstances for Refusing the Objection

Article 257:

The court shall refuse the objection in the following situations:

1– If the person submitting the objection according to this law does not have the right to appeal.

2– If the appealed matter is not included in the issued decision.

3– If the objection request is submitted after the expiration of the specified legal period.

Withdrawal of Appeal

Article 258:

(1) Until the end of judicial session, the objector can withdraw their appeal by submitting a request to the relevant appeal court.

(2) Legal representative of the accused person cannot withdraw from its objection against the order without the accused person’s approval.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Generating a Primary Report

Article 259:

If the objection is accepted by the appeals court, one of the judges from the relevant division is assigned to generate a report to include the following information:

1– Summary of the case incidents.

2– Summary of assessments and proceedings of authorized courts.

3– Reasons and evidence for decision.

4– Other issues included in the investigation and judicial proceedings and identified as relevant to the decision.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Application of the Prosecutor or Parties of the Case for Appeal

Article 260:

If an appeals application is filed only by the prosecutor or both by the prosecutor and accused person, the court can confirm the decision or overrule the decision and issue a decision to repeal or amend it, and/or increase or decrease the punishment. Repealing the verdict on acquittal shall take place on unanimous votes of the judges.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Application of the Accused Person for Appeal

Article 261:

When the application for appeal is only filed by the accused person, the court can only issue a decision to confirm the verdict, mitigate the punishment or acquit the accused person; however it cannot decide to increase the punishment.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Prosecutor’s Disagreement and Out-Of-Turn Proceedings

Article 262:

(1) If the accused person is under detention and the primary court acquits the accused person or sentences the accused person to prison for the period of time that he/she has already served it in detention or the detention period has been deemed adequate for him/her and the prosecutor appeals against such a decision, the prosecutor is obligated to submit the appeals application to the appeals court immediately and issue the accused person’s transfer order to a detention center or prison that is located in the jurisdiction of appeals court.

(2) The appellate court is obliged to proceed with the prosecutor application for appeal immediately and out of turn.

(3) If the court finds the prosecutor’s reasons to be well founded, the court shall issue an order to extend the accused person’s period of detention; otherwise the court shall release the accused person from detention prior to proceeding with the case.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Proceeding in Appellate Court

Article 263:

(1) If the appeals court determines previously completed proceedings sufficient for making an appeals decision, it may issue a decision in the case without rehearing the witnesses and reviewing the experts’ views.

(2) If the appellant could not file the objection within the time limit determined by law, the court can proceed with the case based on the appeal application.

(3) If the appellant is sentenced to imprisonment but the order of imprisonment has not been enforced yet, the appellate court can only proceed with case if the convict surrenders himself to the related organ for the enforcement of the punishment before the trial, otherwise his right to appeal will be nullified, unless otherwise the convict is released on bail.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Appeals Court Proceedings During a Case:

Article 264:

(1) The appeals court shall have all of the primary court’s powers during the proceeding of the case in the appeal stage.

(2) The appeals court decides the case in the following order:

1– Hearing of the primary report that is prepared by the judicial member of related court division.

2– Hearing the statements and represented reasons of the appellant.

3– The prosecutor statement on main accusation and reasons for objection, if the objector is losing party.

4– Hearing the statement of the accused person and other involved parties in the case.

5– Hearing the witnesses’ statements and statements of other involved parties in the case and necessary questions.

6– Hearing the statements of the accused person as a last speaker.

7– Proceeding with the case by the court and issuing a sentence.

8– Hearing of statements by experts.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Stipulating the Articles of Law in the Ruling or Verdict

Article 265:

If the appeals court confirms, overrules, amends, corrects or revokes the primary court’s decision, it shall stipulate the reasons in accordance with articles of the law that the court relied on in its verdict or ruling.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Correcting an Error and Proceeding with the Original Case

Article 266:

(1) If the primary court has issued a decision on the original matter and the appeals court identifies that there was an error in the verdict, the decision will be revoked and it shall proceed with the original case and issue a verdict.

(2) If there is an error in the proceedings, the court shall correct the error and confirm the verdict, provided that the error does not cause the nullification of the proceedings and does not affect the verdict.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Decision Taking

Article 267

At the end of the case proceeding, the appeals court shall render one of the following decisions:

1– Issuing a verdict confirming the primary court’s decision.

2– Overruling the primary court’s decision and issuing a new decision.

3– Amending the primary court’s decision.

4– Correcting the primary court’s decision, if there is a misspelling or mistake in numbers or quantity and does not affect the verdict and result of the verdict.

5– Revoking the primary court’s decision and turning it over to the authorized court for issuing a new decision along with stating the nullified instances.

6– Issuing a ruling for further investigation, if there are defects and gaps in the investigation or documents that can affect the verdict.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Contents of the Appeals Court Decision:

Article 268:

The appeals court’s decision shall include the following:

1– Name and division of the appeals court.

2– Time and place the verdict was issued.

3– Name of the prosecutor who participated.

4– Personal information of the accused person and their legal representative.

5– Summary of the contents of the primary court’s decision.

6– Contents of the objection.

7– Summary of statements of witnesses, the accused person, prosecutor and other involved parties of the case and evaluation of each.

8– Conclusion and analysis of the relevant assessments in light of the provisions of law.

9– Text of the verdict.

Section 3 Trial

Chapter 11 Case Proceedings in an Appeals Court

Remanding the Case for a Second Review

Article 269

If the primary court has issued a decision on lack of authority or on accepting a secondary defense which prevents the proceeding of the case, the appellate court shall repeal the verdict and refer the case to the competent court to decide on the main issue of the case.

Chapter 6 Recourse to the Supreme Court

Article 55.
Recourse Against the Decision of the Court of Military Appeals

(a) The person sentenced by the Court of Military Appeals, the victim or the prosecutor can lodge a recourse to the Supreme Court only if the complaint refers to:

1. Violations in the application of the law or wrong interpretation of the law.

2. A decision based on the rule excluding evidence which has been collected without respect of the legal requirements.

(b) The period to file an appeal with the Supreme Court is 30 days of announcing the decision by Court of Military Appeals.

Chapter 4 The Trial

.Article 46.
Appeal against the Decision

If one of the parties is not satisfied with the decision of the basic military court, and he appeals the decision, he can submit an appeal to the court issuing the order or the Military Court of Appeals.

Chapter 5 Appellate Procedures

Article 47.
Appeal Against the Decision of the Basic Military Court

(a) The person who has been sentenced can appeal the decision of the court by filing an appeal. The act of appeal shall be filed with the clerk of the court issuing the order or Military Court of Appeal within twenty-days. This time limitation starts from the last notification. (b) The prosecutor can, after the verdict is issued, appeal the decision of the Basic Military Court. The appeal must be in writing, and filed with clerk of the court issuing the decision or the Military Court of Appeals within ten days.

Chapter 5 Appellate Procedures

Article 48.
Stay of the Procedure and Appeal of the Decision in the Case of the Not Found Accused

(a) After the decision of the court in the case of the not found accused (trial in abstentia) the procedure stays until when the accused personally or the defense counsel delegated by him lays down an appeal. In this case the beginning of the appeal term starts for the accused from the moment he has been found, and also a notification has been delivered to him.

(b) If the accused does not lay down an appeal during the said term in article 47 (a) the decision becomes final.

Chapter 5 Appellate Procedures

Article 49.
Modalities of the Appeal

(a) The act of appeal shall be signed by the accused or by his defense counsel when the latter represented the accused during the trial.

(b) The clerk of the court receiving the act of appeal has to register it specifying the date and hour of the delivery.

(c) If the accused who wants to file the appeal and delivers a written text is unable to sign it because illiterate or for any other reason he can fingerprint it and the clerk of the court shall certify this in the register.

(d) If an illiterate person wants to file an appeal but is not in a position to present a written text, the clerk of the court shall write down in the register his verbal statements.

Chapter 5 Appellate Proceedings

Article 50. Content of Appeal

(a) The act of appeal shall contain the indication of the contested decision and expose the reasons according to which the decision is considered wrong.

(b) The denunciation of the errors of the decision shall make reference to:

1. Wrong application of the law and definition of crime;

2. Wrong evaluation of the facts and circumstances;

3. Wrong application of the penalty and/or its amount.

Chapter 5 Appellate Proceedings

Article 51.
Activities of the Appeal Trial

(a) The Chief Judge of the Court of Military Appeals, upon receipt of the appeals shall fix the date and hour of the hearing.

(b) The notification shall be served to the accused and the prosecutor at least five days before the date of the hearing by the Executive Office of the Court.

Chapter 5 Appellate Proceedings

Article 52.
Powers of the Court of Military Appeals

(a) The Court of Military Appeals shall confine its review to the points of the decision to which the act of appeal makes reference.

(b) When the appeal is filed by the accused, the court can in no case increase the punishment inflicted by the Basic Military Court.

Chapter 5 Appellate Proceedings

Article 53.
Appeal Hearing

(a) Whenever the Court of Military Appeals deems that the activities accomplished in the previous procedure are not sufficient for making a sound decision, it can hear the witnesses and experts who appeared in the Basic Military Court and collect new documents and explore new proofs.

(b). Otherwise the court makes its decision on the basis of the existing material and of the arguments presented during the discussion.