Main tasks and practical skills
- Cassation review is a process of reviewing a legally enforceable judgment or decision which is protested against because there was a finding of serious breach of the law in the course of handling the case (Article 272 of the CrPC). Noting that legally enforceable judgments or decisions include:
- Judgments or decisions of first instance or parts of such judgments or decisions, which have not been appealed or protested, shall take legal effects upon expiry of the time limit for appeals or protests (Article 240 of the CrPC);
- The entire judgment or decision of first instance has been appealed or protested but the appellant or the protesting Procuracy withdraws the entire appeal or protest and the Court of Appeal issues a decision on the suspension of the appellate hearing, the judgment of first instance shall take legal effect on the date when the Court of Appeal issues the decision on suspension of the appellate hearing (Item 2 of Article 238 of the CrPC, Point a of Sub-Section 7.2. of Section 7 of Part I of Resolution No. 05/2005);
- Where the appellant withdraws a part of the appeal or where there are different appellants, of whom some withdraw the appeal and the others do not, or where the Procuracy withdraws a part of the protest, and if the Court of Appeal does not consider the withdrawn parts, such parts shall take legal effect on the expiry of the time limit for appeals or protests (Point b of Sub-Section 7.2 of Section 7 of Part I of Resolution No. 05/2005);
- The appellate judgment shall take legal effect upon pronouncement of the judgment (Item 3 of Article 248 of the CrPC);
- The decision on cassation review or retrial shall take legal effect upon being issued (Article 288 and Article 299 of the CrPC).
- Serious breaches of the law shall be the grounds for protests on the basis of cassation review, including the circumstances as provided in Article 273 of the CrPC. Generally speaking, although there has been no guideline by relevant bodies, the ground for cassation review is established solely when there was a breach of law which has made the determination of the case incomprehensive, arbitrary and contrary to the law. The practice of cassation review has shown:
- Investigation and interrogation at trials are often one-sided, only focusing on one side or aspect, not investigating and interrogating all sides and aspects of an issue (For example: investigating and interrogating the sides and aspects in a conviction-oriented manner, not investigating and interrogating for finding a person innocent).
- Investigation and interrogation at trials are not sufficient, ignoring one or more facts of each issue and offence of the case, or not investigating and interrogating all persons who attend the proceedings (For example: the victim is not interrogated).
- Conclusions in the judgment or decision do not fit the objective facts of the case, which means the judgment or decision contains issues in contradiction with objective facts enclosed in the case file and clarified at the trial by means of interrogation or oral argument.
- There is a serious breach of the proceedings in the course of investigation, prosecution or hearing. Specifically, the CrPC provides that it is compulsory to conduct a proceeding but the person or body who conducts the proceeding ignores such proceeding or conducts it in an improper manner, which causes a serious breach of the rights and interests of the accused, victim, civil plaintiff, civil defendant, persons having related rights and obligations or makes the resolution of the case prejudiced and not comprehensive (as provided in Sub-Section 4 of Section 4 of Part I of Resolution No. 04/2004).
- Serious breaches in the application of the Penal Code include improper application of provisions of the Penal Code and as a result of that heavier or milder penalties or more serious provisions have applied to the defendant. Also, serious breach in the application of the Penal Code can include the imposition of extremely heavier or milder penalties, wrong compensation on the defendant despite the judge have correctly applied provisions of the law
|
