In what cases is the appellate court adjourned?

1. When there is not enough evidence in the appellate court session, can the trial be retried?

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Dear lawyer, which Court is the jurisdiction of the appellate court? When there is no evidence, documents or objects that cannot be done right at the court hearing, can the trial be re-tried?

You are viewing: What is Adjourn

The lawyer replied:

Pursuant to Article 344 of the 2015 Criminal Procedure Code on the Court having jurisdiction to hear the appellate trial stipulates as follows:

Article 344. Courts with appellate jurisdiction

1. Provincial-level People's Courts are competent to conduct appellate trials of district-level People's Court judgments or decisions which are appealed or protested against.

2. The superior People's Court has the competence to appellate trial the judgment or decision of the provincial People's Court within its jurisdiction according to the territory being appealed or protested against.

3. The military zone-level military courts have the power to conduct appellate trials against the appeals or protests against the judgments or decisions of the regional military courts.

4. The Central Military Court has the power to conduct appellate trial against the appealed or protested against the judgment or decision of the military court of the military zone.

2. In what cases is the appellate criminal trial adjourned?

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According to current law, postponing a criminal court session is the transfer of the scheduled time of conducting a criminal court session to a later time. The adjournment of the court session can only be done when there are grounds prescribed by the criminal procedure law.

The cases of adjournment of the appellate criminal court hearing are specified in Clause 1, Article 352 of the Criminal Procedure Code 2015 (effective from January 1, 2018). Accordingly, the Court of Appeal may only postpone the trial in one of the following cases:

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a) Having one of the grounds specified in Articles 52, 53, 349, 350 and 351 of this Code;

b) It is necessary to verify and collect additional evidences, documents and objects that cannot be done right at the court hearing.

In case of adjournment, the case must be retried from the beginning.

The time limit for adjournment of the court hearing and the decision to postpone the appellate court hearing shall comply with the provisions of Article 297 of the 2015 Criminal Procedure Code. Specifically:

The time limit for adjournment of the court hearing must not exceed 30 days from the date of issuance of the decision to postpone the court hearing.

Regarding the content, the decision to postpone the trial has the following main contents:

- Date, month and year of decision;

- Name of the Court and full name of the Judge, juror, and Clerk of the Court;

- Full name of the procurator exercising the right to prosecute and supervise trial at the court hearing;

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- The case is brought to trial;

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– The reason for the adjournment of the trial;

Time and place of reopening the court hearing.

The decision to postpone the court session must be signed by the presiding judge on behalf of the Trial Panel. In case the presiding judge of the court session is absent or changed, the chief justice of the court shall issue a decision to postpone the court session.

The decision to postpone the court session must be immediately notified to the procedure participants present at the court hearing; shall be sent to the procuracies of the same level and those who are absent from the court sessions within 2 days from the date of issuance of the decision.

3. When is the appellate court adjourned?

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According to the provisions of Clause 1, Article 352, of the 2015 Criminal Procedure Code, the criminal court hearing is adjourned in the following cases:

“The appellate court may only postpone the court session in one of the following cases:

a) Having one of the grounds specified in Articles 52, 53, 349, 350 and 351 of this Code;

b) It is necessary to verify and collect additional evidences, documents and objects that cannot be done right at the court hearing.

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In case of adjournment, the case must be retried from the beginning.”

Thus, the suspension for a certain period of time the adjudication of the case according to appellate procedures only occurs when the statutory conditions specified in Clause 1, Article 352, 2015 Criminal Procedure Code are satisfied, specifically. , "In case the procurator must be changed at the court session, the trial panel shall issue a decision to postpone the court session." (Stipulated in Clause 2, Article 52 of the Criminal Procedure Code 2015), “In case a procurator is changed or cannot continue to exercise the right to prosecute, administer and adjudicate without an alternate procurator to Instead, the Trial Panel adjourns the court session” (Prescribed in Article 350 of the Criminal Procedure Code 2015). Participation in the trial of the Procurator of the Procuracy of the same level is mandatory. Therefore, in case the procurator must be changed at the court session, the trial panel shall issue a decision to postpone the court session. Such decision shall be sent to the director of the procuracies of the same level or to the director of the immediate superior procuracies. The appointment of other procurators to participate in the court hearings shall be decided by the head of the procuracies of the same level or the director of the immediate superior procuracies. This ensures that the supervision and adjudication activities are continuous and uninterrupted, meeting the requirements of checking the correctness in criminal proceedings at the trial.

The appellate court session is adjourned in "In case the judge or juror must be changed at the court session, the trial panel shall issue a decision to postpone the court session". (Prescribed in Clause 2, Article 52 of the Criminal Procedure Code 2015). At each court session, the presence of judges and jurors is mandatory. In this case, the postponement of the trial is completely reasonable, creating conditions and time for the judge and juror to carefully study the case as well as ensure necessary conditions for the trial. Similarly, “In case the Court Clerk is changed or cannot continue to participate in the court hearing, the Court can still hear the case if there is an alternate Court Clerk; If there is no replacement, the trial shall be suspended.” (specified in Article 349 of the Criminal Procedure Code 2015).

At Point a, Clause 1, Article 351 of the 2015 Criminal Procedure Code, it also stipulates that “In case the defense counsels is absent for the first time due to force majeure or objective obstacles, the court hearing must be postponed, except for the following cases: in case the defendant agrees to trial in the absence of the defense counsel. In case the defense counsel is absent for no reason of force majeure or objective obstacles or is still absent after being duly summoned for the second time, the court shall still conduct the trial.” The adjournment of the court hearing in the absence of the counsellor is intended to ensure the legitimate rights and interests of the victim, the litigants, the appellant, and the person with interests and obligations related to the appeal or protest. However, the conditions for adjournment of the trial are the first absence of the defense counsel, force majeure reasons or objective obstacles preventing the defense counsel from participating in the trial.

The appellate court hearing is adjourned when "it is necessary to verify and collect additional evidences, documents and objects that cannot be done right at the court hearing" (Clause 2, Article 352 of the Criminal Procedure Code 2015). In this case, the postponement of the trial is necessary, the information that needs to be verified, the collection of evidences, documents, objects... can have a great influence on the judgment pronounced by the court, so to ensure the validity accurate, fair and reasonable, the Court of Appeal was entitled to adjourn the trial.

The case will be retried from the beginning if the trial is adjourned.

4. Time limit for adjournment of court hearings and decision to adjourn the appellate court hearing

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Clause 2, Article 352 of the 2015 Criminal Procedure Code stipulates that “The time limit for adjournment of the court hearing and the decision to postpone the appellate court hearing shall comply with the provisions of Article 297 of this Code.”

Thus, the time limit for adjournment of the appellate court hearing is similar to the time limit for adjournment of the first-instance court hearing, which must not exceed 30 days from the date of issuance of the decision to adjourn the court hearing.

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The decision to postpone the appellate court hearing includes the following main contents:

a) Date, month and year of the decision;

b) Name of the Court and full names of the Judge, juror, and Clerk of the Court;

c) Full name of the procurator exercising the right to prosecute and supervise trial at the court hearing;

d) The case is brought to trial;

d) Reasons for adjournment of the court hearing;

e) Time and place of reopening the court session.

The decision to postpone the appellate court session must be signed by the presiding judge on behalf of the Trial Panel. In case the presiding judge of the court session is absent or changed, the chief justice of the court shall issue a decision to postpone the court session. The decision to postpone the court session must be immediately notified to the procedure participants present at the court hearing; shall be sent to the procuracies of the same level and those who are absent from the court sessions within 2 days from the date of issuance of the decision.

5. Applying, changing or canceling preventive and coercive measures during the appellate trial stage

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1. After accepting the case, the appellate court has the power to decide on the application, change or cancellation of preventive or coercive measures.

The application, change or cancellation of the temporary detention measure shall be decided by the chief justice or deputy chief justice of the court. The application, change or cancellation of other preventive measures and coercive measures shall be decided by the presiding judge of the court session.

2. The time limit for temporary detention for trial preparation must not exceed the time limit for appellate trial preparation specified in Article 346 of this Code.

In case the defendant's temporary detention period still remains, and deems it necessary to continue temporary detention, the appellate court shall use the temporary detention time limit under the temporary detention decision of the first-instance court. In case the time limit for temporary detention of the accused has expired according to the temporary detention decision of the first-instance court, the chief judge or deputy chief justice of the court shall issue a new temporary detention decision.

For defendants currently in temporary detention, if deeming that it is necessary to continue temporary detention to complete the trial, the Trial Panels shall issue a decision on temporary detention until the end of the trial.

3. For defendants who are being held in temporary detention and sentenced to prison, but by the end of the court session the temporary detention time limit has expired, the trial panel shall issue a decision on temporary detention of the defendant to ensure judgment enforcement, except for cases where specified in Clauses 4 and 5, Article 328 of this Code.

For defendants who are not detained but are sentenced to prison, the Trial Panel may issue a decision to arrest the accused in temporary detention right after the sentence is pronounced.

The detention period is 45 days from the date of sentencing.

All legal problems related to criminal law, criminal procedure law – Call now: 1900.6162 to get online criminal legal advice from a lawyer.

Best regards./.

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Criminal law consulting department – Minh Khue Law Firm

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