What is an Appeal and a Protest in Criminal Procedure? Differentiate between an Appeal and a Protest in Criminal Procedure.
What is an Appeal and a Protest?
Currently, Criminal Procedure Law does not have specific regulations on the concepts of appeal and protest. However:
Based on the provisions of Article 330 of the 2015 Criminal Procedure Code, an appeal and a protest can be understood as the right to request a higher court to directly reconsider the judgment or decision of the first-instance court that has not yet taken legal effect. This right is exercised by the participants in the proceedings (in the case of an appeal) or by the agencies and individuals conducting the proceedings (in the case of a protest).
What is an appeal and a protest in criminal proceedings? How to distinguish between an appeal and a protest in criminal proceedings?
Distinguishing Between an Appeal and a Protest in Criminal Proceedings?
According to Section I of Chapter XXII of the 2015 Criminal Procedure Code, appeals and protests in criminal proceedings are distinguished by the following criteria:
| Criteria | Appeal | Protest || --- | --- | --- || Form | The subject performing the appeal to the appellate court.
(Clause 1, Article 332 of the 2015 Criminal Procedure Code) | Conducted in 03 forms: appeal, cassation, and reopening. || Performing Entity | Individuals having the right to appeal (depending on each case as stipulated in the Criminal Procedure Code) in a criminal case include:
- Defendant, victim, their representatives;
- Defense lawyer;
- Civil plaintiff, civil defendant, their representatives;
- Individuals with related rights and obligations in the case, their representatives;
- Individuals protecting the legitimate rights and interests of the victim and parties under 18 years old or those with mental or physical disabilities;
- Individuals declared not guilty by the court. | Agencies and individuals conducting the proceedings with the right to protest include:
- For appellate level:
People’s Procuracy at the same level, People’s Procuracy directly above has the right to protest the first-instance judgment or decision;
- For cassation level (depending on each case stipulated in the Criminal Procedure Code):
+ Chief Justice of the Supreme People’s Court, Procurator General of the Supreme People’s Procuracy;
- Chief Justice of the Central Military Court, Procurator General of the Central Military Procuracy;
- Chief Justice of the High People’s Court, Procurator General of the High People’s Procuracy;
- For reopening level (depending on each case stipulated in the Criminal Procedure Code):
+ Procurator General of the Supreme People’s Procuracy;
+ Procurator General of the Central Military Procuracy;
+ Procurator General of the High People’s Procuracy; || Scope | - First-instance judgment or decision;
- Defense lawyer appeals to protect the interests of individuals under 18 years old, or those with mental or physical disabilities whom they represent;
- Part of the judgment or decision related to compensation for damages;
- Part of the judgment or decision related to rights and obligations of individuals with related rights and obligations;
- Part of the judgment or decision concerning the rights, obligations of the person they represent;
- The grounds that the first-instance judgment declares that individual not guilty. | - Appellate level: Protest against the first-instance judgment or decision that has not yet taken legal effect;
- Cassation level: Protest against the court’s judgment, decision that has taken legal effect when there are grounds such as:
+ The conclusions in the court's judgment or decision do not match the objective circumstances of the case;
+ Serious procedural violations in investigation, prosecution, and trial lead to serious errors in resolving the case;
+ Serious errors in the application of the law.
- Reopening level: Review the judgment, decision that has taken legal effect by the court, but is protested due to newly discovered circumstances that may fundamentally change the content of the judgment, decision unknown to the court at the time of issuance. || Time Limits | - The time limit for appeal against a first-instance judgment is 15 days from the date of judgment announcement.
For defendants, individuals absent at the trial, the time limit for appeal is from the date they receive the judgment or the judgment is posted as stipulated by law.
- The time limit for appeal against a first-instance decision is 07 days from the date the appellant receives the decision. | - Appellate level:
+ The time limit for protest by the People’s Procuracy at the same level against the court’s first-instance judgment is 15 days, that by the People’s Procuracy directly above is 30 days from the date the court announces the judgment.
+ The time limit for protest by the People’s Procuracy at the same level against the first-instance court's decision is 07 days, that by the People’s Procuracy directly above is 15 days from the date the court issues the decision.
- Cassation level:
+ Protests for the disadvantage of the convict can only be done within 01 year from the date the judgment, decision takes legal effect.
+ Protests for the benefit of the convict can be done at any time, even if the convict has died and needs to be exonerated.
+ Protests regarding civil matters in criminal cases are handled according to the provisions of civil procedure law.
- Reopening level:
+ Reopening to the disadvantage of the convict is done within the criminal liability statute of limitations and the time limit for protest is not more than 01 year from the date the procuracy receives new information about the discovered circumstance.
+ Reopening for the benefit of the convict has no time limit and is done even if the convict has died and needs to be exonerated.
+ Protests against civil matters in criminal cases are handled according to the provisions of civil procedure law. |
Consequences of Appeal and Protest as Regulated?
According to the provisions of Article 339 of the 2015 Criminal Procedure Code, the consequences of appeal and protest include:
Parts of the court's judgment or decision under appeal or protest are not executed, except as stipulated in Article 363 of this Code. When the appeal or protest concerns the entire judgment or decision, the entire judgment or decision is not executed, except as stipulated in Article 363 of this Code.
The first-instance court must send the case file, appeal, protest, and accompanying evidence, documents, and objects (if any) to the appellate court within 07 days from the expiry of the appeal and protest period.
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