PART X – SENTENCES AND THEIR EXECUTION
SENTENCE OF DEATH
330. Accused to be informed of right to appeal
When an accused person is sentenced to death, the court shall inform him of the time within which, if he wishes to appeal, his appeal should be preferred.
PART X – APPEALS FROM COURTS MARTIAL
186. Appeal to High Court
(1) If a person has been convicted by a court-martial—
(a) the person convicted may appeal to the High Court and make subsequent appeals to any other superior court, against the conviction, the sentence, or both; or
(b) the Director of Public Prosecutions may appeal to the High Court and make subsequent appeals to any other superior court against the sentence.
(2) If a person has been acquitted of a charge by a court-martial, the Director of
Public Prosecutions may appeal to the High Court and make subsequent appeals
to any other superior court against the acquittal.
187. Notice of Appeal
(1) An appeal to the High Court shall not lie unless a notice of Appeal is lodged with the Registrar within twenty-one days after the acquittal, conviction or sentence, as the case may be.
(2) The notice of appeal shall be in the prescribed form.
(3) Except in the case of a conviction involving sentence of death, the High Court may extend the period within which a notice or Appeal shall be lodged, whether that period has expired or not.
(4) An appellant may present the appeal case in writing.
188. Determination of appeal in ordinary cases
(1) Subject to section 189, the High Court shall—
(a) allow an appeal against conviction and quash the conviction if it considers that the conviction—
(i) is unreasonable;
(ii) cannot be supported, having regard to the evidence;
(iii) involves a wrong decision on a question of law; or
(iv) there was a miscarriage of justice,
unless the court finds that no substantial miscarriage of justice has actually occurred; or
(b) dismiss the appeal.
(2) The court shall allow an appeal against acquittal and convict the accused if it considers that—
(a) the evidence was such that the person acquitted should have been convicted; or
(b) the acquittal involves a wrong decision on a question of law, and shall pass such sentence as it thinks proper, and otherwise it shall dismiss the appeal, and section 173 shall apply as it applies to a trial by a court-martial.
(3) On an appeal against sentence, the court may reduce or increase the sentence or alter the nature of the sentence, as it thinks proper.
189. Powers of court in special cases
(1) If the High Court determines that an appellant—
(a) was not properly convicted on a particular charge brought before the court-martial; and
(b) was properly convicted on some other charge so brought, then, if the sentence passed by the court-martial on the appellant was not one which could lawfully be passed for the offence of which the appellant was convicted on that other charge, the High Court shall pass on the appellant such sentence as it thinks proper, in substitution for the sentence passed by the court-martial.
(2) If an appellant has been convicted of an offence, and—
(a) the court-martial could lawfully have convicted the appellant of some other offence; and
(b) it appears to the High Court that the court-martial shall have been satisfied of facts which proved the appellant guilty of that other offence, the High Court may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the other offence and pass on the appellant such sentence as it thinks proper (being a sentence which could lawfully have been passed for that other offence and not one of greater severity), in substitution for the sentence passed by the court-martial.
(3) If—
(a) an appellant has been convicted of an offence committed in circumstances involving the greater of two punishments, and it appears to the High Court that the court-martial ought to have found the appellant guilty of an offence as being committed in circumstances involving the less punishment; or
(b) an appellant has been convicted of an offence and it appears to the High Court that the court-martial ought to have convicted the appellant of the offence subject to exceptions or variations, the High Court, instead of allowing or dismissing the appeal, may substitute for the conviction a conviction of the offence as being committed in circumstances involving the less punishment or, as the case may be, a conviction of the offence subject to exceptions or variations, and pass on the appellant such sentence as it thinks proper (being a sentence which could lawfully have been passed, for the offence specified or involved in the substituted finding and not one of greater severity) in substitution for the sentence passed by the court-martial.
(4) If, on an appeal, the High Court considers that the appellant did the act or made the omission charged but was insane so as not to be responsible for the acts or omissions at the time when the act was done or the omission was made, it shall quash the conviction and substitute a special finding that the appellant was guilty of the act or omission charged but was insane, and section 179(2) shall apply accordingly.
(5) The term of any sentence of imprisonment passed by the High Court under this section shall, unless the High Court otherwise directs, run from the time from which it would have run if it had been passed in the proceedings appealed against, and a sentence passed by the High Court shall be deemed for the purposes of this Act to be a sentence passed by the court-martial.
190. Court may appoint expert
The High Court may appoint a person with special or expert knowledge to assist the Court in any such manner as it deems expedient in the discharge of justice, if the court considers that such knowledge is required for the proper determination of an appeal before it.
191. Proceedings to be heard in absence of appellant
(1) An appellant shall not be entitled to be present at the hearing of an appeal or at any proceedings preliminary or incidental to such an appeal, except where—
(a) rules of court provide that the appellant shall have the right to be present; or
(b) the High Court grants leave to be present.
(2) Any power of the High Court under this Part to make a determination or pass a sentence may be exercised despite the absence of the appellant.
192. Defence on appeal
If a person appeals against a conviction, sentence or both, the Director of Public Prosecutions shall make arrangements for the defence of the appeal.
193. Person sentenced to death to have opportunity to appeal
If a person is convicted by a court-martial and sentenced to death that person—
(a) shall not be executed until after the expiration of the period within which a notice of appeal may be lodged to the High Court against the conviction or sentence or both; and
(b) if such a notice is duly lodged, the sentence shall not be executed until either the notice is withdrawn or the appeal is determined or abandoned.
194. Removal of prisoner
An appellant who is in custody, shall be taken to, kept in custody at, and brought back from, any place at which the appellant is entitled to be present for the purposes of this Part in the prescribed manner, and the High Court may order the appellant to be taken to any prescribed place for the purpose of any proceedings of the High Court.
195. Composition of court
Upon the hearing of an appeal under this Part, the High Court shall consist of one or more Judges.
196. Furnishing of documents
In the case of an appeal, under this Part, it shall be the duty of the Defence Court Administrator to furnish the Registrar, in accordance with rules of court martial, with a record of the proceedings of the court-martial.
197. Duties of Registrar
(1) The Registrar shall take all necessary steps obtaining the determination of an appeal under this Part, and shall obtain and lay before the High Court in proper form all documents, exhibits and other things relating to the proceedings before the court-martial that appear necessary for the proper determination of appeal.
(2) The Registrar shall furnish the necessary forms and instructions relating to an appeal under this Part to any person who asks for them, to persons in charge of prisons and to such other persons as the registrar thinks fit, and every person in charge of a prison shall cause the forms and instructions so furnished to be placed at the disposal of persons imprisoned who desire to lodge an appeal under this Part.
PART X – APPEALS FROM COURTS MARTIAL
191. Proceedings to be heard in absence of appellant
(1) An appellant shall not be entitled to be present at the hearing of an appeal or at any proceedings preliminary or incidental to such an appeal, except where—
(a) rules of court provide that the appellant shall have the right to be present; or
(b) the High Court grants leave to be present.
FOURTH SCHEDULE
GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR DATED THE 12TH AUGUST, 1949
PART III – STATUS AND TREATMENT OF PROTECTED PERSONS
SECTION III – OCCUPIED TERRITORIES
Article 73
III. Right of appeal
A convicted person shall have the right of appeal provided for by the laws applied by the court. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.
The penal procedure provided in the present Section shall apply, as far as it is applicable, to appeals. Where the laws applied by the Court make no provision for appeals, the convicted person shall have the right to petition against the finding and sentence to the competent authority of the Occupying Power.
6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82.
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.
1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence:
(a) A decision with respect to jurisdiction or admissibility;
(b) A decision granting or denying release of the person being investigated or prosecuted;
(c) A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3;
(d) A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.
2. A decision of the Pre-Trial Chamber under article 57, paragraph 3 (d), may be appealed against by the State concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an expedited basis.
3. An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence.
4. A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence.
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.