Grounds for protest through the cassation procedure in Vietnam

What is cassation procedure?

Pursuant to Article 370 of the Criminal Procedure Code 2015, The cassation procedure reviews a Court’s effective sentences and rulings under protest upon the exposure of a serious breach of law in the settlement of the case.

Grounds for protest through the cassation procedure in Vietnam (Internet image)

Grounds for protest through the cassation procedure in Vietnam

Pursuant to Article 371 of the Criminal Procedure Code 2015, a court’s sentences and rulings in effect shall be protested according to the cassation procedure in the presence of one of the following grounds:

- The court’s sentences and rulings do not correspond with objective facts of the case;

- A serious breach of legal proceedings for investigation, prosecution and adjudication resulted in a serious error in the settlement of the case;

- An error in the application of the law occurred.

Persons with the right to lodge protests through the cassation procedure in Vietnam

Pursuant to Article 373 of the Criminal Procedure Code 2015, persons with the right to lodge protests through the cassation procedure in Vietnam include:

- The president of the Supreme People’s Court and the head of the Supreme People’s Procuracy shall have the right to lodge protests through the cassation procedure, when deemed necessary, against the effective sentences and rulings passed by a Higher People’s Court or other Courts, except for the rulings pronounced by the Judicial panel of the Supreme People’s Court.

- The president of the Central military court and the head of the Central military procuracy shall have the right to lodge protests through the cassation procedure against the effective sentences and rulings passed by a military Court of a military zone or a local military Court.

- The president of the Higher People’s Court and the head of the Higher People’s Procuracy shall have the right to lodge protests through the cassation procedure against the effective sentences and rulings passed by a provincial People’s Court or a district People’s Court in conformity to the territorial jurisdiction.

Time limit for protests through the cassation procedure in Vietnam

Time limit for protests through the cassation procedure is prescribed in Article 379 of the Criminal Procedure Code 2015 as follows:

- The time limit for protests against the sentenced person shall be 01 year upon the effect of the sentence or ruling.

- Protests in favor of the sentenced person shall be initiated any time, even for the exoneration of the sentenced person who passed away.

- Protests on litigants’ civil matters in a criminal case shall abide by the Civil procedure code.

- If there is no ground to lodge protests through the cassation procedure, the individual authorized to protest must inform the requesting authorities and entities in writing of his decision not to protest and reasons.

Jurisdiction over cassation procedure in Vietnam

Jurisdiction over cassation procedure is specifically stipulated in Article 382 of the Criminal Procedure Code 2015 as follows:

(1) Committee of Judges of the Higher People’s Court conducts the cassation procedure through a Judicial panel of three judges to review effective sentences and rulings passed by provincial People’s Courts or district People's Courts in conformity to the territorial jurisdiction.

(2) Plenary assembly of the Committee of Judges of the Higher People’s Court conducts the cassation review of effective rulings and sentences passed by a People’s Court as per (1), which comprise complex elements, or sentences and rulings reviewed by the 3-judge Judicial panel established the Committee of Judges of the Supreme People’s Court through the cassation procedure without reaching an agreement on the settlement of the case through voting.

When the Plenary assembly of the Committee of Judges of the Higher People’s Court holds the trial of cassation, two thirds of its members must be attend the trial, which is chaired by the President of the Supreme People’s Court. Rulings of the Plenary assembly of the Committee of Judges must be approved by more than half of its members; otherwise, the trial shall be adjourned.

Plenary assembly of the Committee of Judges, in 30 days upon adjournment of the trial, must resume the trial.

(3) Committee of Judges of the Central military court conducts the cassation review of effective sentences and rulings passed by a military court of a military zone or local military court.

More than two thirds of members of the Committee of Judges of the Central military court must attend the trial of cassation, which is chaired by the President of the Central military court. Rulings of the Committee of Judges must be approved by more than half of its members; otherwise, the trial shall be adjourned. Committee of Judges, in 30 days upon adjournment of the trial, must resume the trial.

(4) Justices’ Council of the Supreme People’s Court assigns a Judicial panel of five Judges to conduct the cassation review of effective rulings and sentences passed the Higher People’s Court or Central military court.

(5) Plenary assembly of Judges of the Supreme People’s Court conducts the cassation review of effective rulings and sentences as stated in Section 4 of this Article, which comprise complex elements, or effective rulings and sentences reviewed by the Judicial panel of five Judges of the Justices’ Council of the Supreme People’s Court through the cassation procedure without reaching an agreement on the settlement of the case by voting.

More than two thirds of members of the Plenary assembly of Judges of the Supreme People’s Court must be present at the trial of cassation, which is chaired by the President of the Supreme People’s Court. Rulings of the Plenary assembly of Judges of the Supreme People’s Court must be approved by more than half of its members;

Otherwise, the trial shall be adjourned. Plenary assembly of Judges, in 30 days upon adjournment of the trial, must resume the trial.

(6) Justices’ Council of the Supreme People’s Court shall conduct the cassation review of the entire lawsuit, whose effective sentences and rulings protested fall into different levels of jurisdiction over cassation procedure.

Mai Thanh Loi

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE