Chapter 23 Regular Legal Remedies
Section 1 Appeal Against the First Instance Verdict
Article 296
Grounds for Appeal
A verdict may be contested on the grounds of: an essential violation of the provisions of criminal procedure; a violation of the criminal code; the state of the facts being erroneously or incompletely established; 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.
Chapter 23 Regular Legal Remedies
Section 1 Appeal Against the First Instance Verdict
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;
(c) if the public was unlawfully excluded from the main trial;
(d) if the Court violated the rules of criminal procedure on the question of whether there existed an approval of the competent authority;
(e) 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;
(f) if, in its verdict, the Court did not entirely resolve the contents of the charge;
(g) if the verdict is based on evidence that may not be used as the basis of a verdict under the provisions of this Code;
(h) if the charge has been exceeded;
(i) 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.
Chapter 23 Regular Legal Remedies
Section 1 Appeal Against the First Instance Verdict
Article 299
Incorrectly or Incompletely Established Facts
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.
It shall be taken that the state of facts has been incompletely established when new facts or new evidence so indicates.
Chapter 23 Regular Legal Remedies
Section 2 An Appeal Against the Decision
Article 318
Appeal Permitted against the Decision
The parties, the defense attorney and persons whose rights have been violated may always
file an appeal against the decision of the Court rendered in the first instance unless when it is
explicitly prohibited to file an appeal under this Code.
A decision rendered in order to prepare the main trial and the verdict may be contested only in an appeal against the verdict.
1. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of the proceedings or decision.
2.
(a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence;
(b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might be set aside, wholly or in part, it may invite the Prosecutor and the convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83;
(c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a).
3.
(a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal;
(b) When a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below;
(c) In case of an acquittal, the accused shall be released immediately, subject to the following:
(i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal;
(ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence.
4. Subject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings.