Application of Law by the Court in the Cassation and Retrial Phase of Criminal Cases

- Judgments and decisions of the Court of First Instance after the appeal period expires (30 days from the date of judgment), are not appealed according to the appellate procedure;

- Judgments and decisions of the Court of Appeal;

- Decisions of final appeal or retrial.

The clear regulation of the time limit for enforcement of judgments and decisions of the Court demonstrates the strictness in the procedure for enforcement of judgments. Article 256 of the Criminal Procedure Code stipulates:

Within 07 days from the date the judgment or decision at first instance comes into legal effect or from the date of receipt of the judgment, decision of appeal, decision of final judgment, decision of retrial, the Chief Justice of the Court at first instance must issue a decision to enforce the judgment or authorize another Court at the same level to issue a decision to enforce the judgment [45].

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The decision to enforce the judgment and decision of the Court is an independent stage from the trial but depends on the trial results of the Court. All judgments and decisions of the Court are the result of a procedural process from the initiation of the case to the investigation, prosecution and trial, and must be enforced to ensure the effectiveness and efficiency of the entire procedural process. In cases where the convicted person is seriously ill or is pregnant, raising a child under 36 months old, is the sole breadwinner in the family, or for official reasons meets the conditions prescribed in Article 61 of the 1999 Penal Code, the execution of the prison sentence may be considered for a postponement, demonstrating the humane criminal policy of our State.

The decision to enforce a court judgment affirms that specific judgments have legal effect, requiring responsible agencies and individuals to strictly enforce the Court's judgment, which is the officialization of the state agency in forcing the subjects of ADPL to fulfill the legal obligations that the Court has decided. According to the provisions of Article 257 of the 2003 Criminal Procedure Code, the implementation of the Court's decision to enforce the judgment is regulated by law.

assigned to many different agencies, such as: Police to execute prison sentences, death sentences, and deportation. Civil enforcement agencies to execute fines (both main and additional penalties), the civil part of the judgment, court fees, and handle evidence... The court issues decisions to execute the following types of penalties: Death penalty, prison sentences, suspended prison sentences, non-custodial reform, and deportation.

The police agency must notify in writing the Court that issued the decision to execute the sentence that the judgment or decision has been executed; if it has not been executed, the reason must be clearly stated. If the convicted person absconds, the judge who issued the decision to execute the sentence must issue a written request to the police agency to issue a wanted notice to arrest the convicted person to serve the sentence.

If a convicted person who is on bail and has not yet served his prison sentence suffers from a serious illness or has made great achievements and is deemed no longer dangerous to society, and is proposed by the Provincial People's Procuracy to be exempted from serving the sentence, the Provincial Court shall establish a Council for considering exemption from serving the prison sentence consisting of 03 judges to consider and decide to exempt the entire sentence for the convicted person proposed under Article 57 of the 1999 Penal Code.

When serving 1/3 of the term of imprisonment, non-custodial reform, or probation period of a suspended sentence, the convicted person has made much progress, complied well with the law and regulations of the enforcement agency, and the enforcement agency has proposed a reduction in the term of imprisonment, non-custodial reform, or probation period of the suspended sentence. The court must establish a reduction review board consisting of 3 judges or 1 judge and 2 jurors to consider and decide to reduce the term of imprisonment or probation period for them. Even though the term is reduced, the person sentenced to life imprisonment must ensure that he/she actually serves 20 years in prison, the person serving the term of imprisonment, non-custodial reform, or probation period of a suspended sentence must ensure that he/she actually serves 1/2 of the term. In special cases, the elderly, the sick, minors, and those who have made meritorious contributions

During the rehabilitation process, the sentence may be reduced earlier, but the actual serving time must be 2/5 of the term.

Although not an agency that enforces criminal judgments, the Court is responsible for making decisions to enforce legally effective judgments in accordance with legal procedures, deciding to postpone or temporarily suspend the execution of sentences, exempt or reduce prison sentences, probation periods, non-custodial reform periods, residence ban periods, and probation periods, in accordance with legal conditions and standards. To ensure both the strictness of the law and the proper implementation of humane criminal policies and the rights of convicted persons during the execution of criminal judgments.

1.2.3.4. Application of the law by the Court in the review and retrial stages of criminal cases

In principle, all judgments must be judged on the right person, the right crime, and the right law. However, judgments are subjective products of the Trial Panel, which are specific people, although carefully trained and selected, there are still errors in the ADPL process at the Court. Therefore, the 2003 Criminal Procedure Code stipulates the review of judgments that have come into legal effect, in order to detect serious violations of the law in handling the content of the case or serious violations of procedural law that require a protest to annul the judgment for retrial. Regarding the grounds for protesting the review, it is stipulated in Article 273 of the 2003 Criminal Procedure Code, which stipulates:

Grounds for appeal under the cassation procedure:

1. The investigation and questioning at the trial was one-sided or not

full;

2. The conclusion in the judgment or decision is not consistent with

objective circumstances of the case;

3. There is a serious violation of procedural law during the investigation, prosecution or trial;

4. There are serious errors in the application of the Penal Code [45].

The authority to appeal for review is stipulated in Article 275 of the 2003 Criminal Procedure Code:

Those who have the right to appeal under the cassation procedure:

1. The Chief Justice of the Supreme People's Court and the Chief Prosecutor of the Supreme People's Procuracy have the right to appeal under the cassation procedure against judgments or decisions that have come into legal effect of courts at all levels, except for decisions of the Council of Judges of the Supreme People's Court.

2. The Chief Justice of the Central Military Court and the Chief Prosecutor of the Central Military Procuracy have the right to appeal according to the cassation procedure against the judgment or decision that has come into legal effect of the lower military court.

3. The Chief Justice of the Provincial People's Court and the Chief Prosecutor of the Provincial People's Procuracy, the Chief Justice of the Military Court at the military region level and the Chief Prosecutor of the Military Procuracy at the military region level have the right to appeal according to the cassation procedure against the judgment or decision that has come into legal effect of the lower court [45].

A directorial appeal unfavorable to the defendant may only be made within one year from the date the judgment becomes legally effective. A directorial appeal in favor of the convicted person is not limited in time, even if the convicted person has died.

According to Article 279 of the 2003 Criminal Procedure Code:

Chief Justice's Jurisdiction:

1. The Judicial Committee of the People's Court at the provincial level reviews judgments or decisions that have come into legal effect of the People's Court at the district level. The Judicial Committee of the Military Court at the military region level reviews judgments or decisions that have come into legal effect of the regional military court.

2. The Criminal Court of the Supreme People's Court reviews with final judgments or decisions of provincial People's Courts. The Central Military Court reviews with final judgments or decisions of military courts of military regions.

3. The Council of Judges of the Supreme People's Court reviews with final judgments or decisions of the Central Military Court, the Criminal Court, and the Supreme People's Court of Appeals that have come into legal effect and are subject to appeal.

4. Judgments or decisions that have come into legal effect on the same criminal case falling under the final review jurisdiction of different levels as prescribed in Clauses 1, 2 and 3 of this Article shall be reviewed by the higher level competent authority for the entire case [45].

Article 285 of the 2003 Criminal Procedure Code stipulates:

The Board of Directors has the power to decide:

1. Not accepting the appeal and maintaining the judgment or decision that has come into legal effect;

2. Annul the judgment or decision that has come into legal effect and suspend the case;

3. Annul the judgment or decision that has come into legal effect for re-investigation or re-trial [45].

After the decision of the Chief Justice or the Chief Judge of the Provincial Court to appeal against the first instance criminal judgment of the district court under the province has come into legal effect, the Judicial Committee of the Provincial Court, consisting of the Chief Justice, Deputy Chief Justices and a number of judges of the Provincial Court, shall review the first instance criminal judgment of the district court under the province that has been protested under the supervisory procedure. The members of the Judicial Committee are equal in power, and at least two-thirds of the total members of the Judicial Committee attending the meeting must vote by majority, rejecting the supervisory protest or accepting the supervisory protest, annulling the first instance judgment for retrial or reinvestigation. The decision of the Judicial Committee to review must be approved by more than half of the total members of the Judicial Committee.

The Supreme People's Court Criminal Court establishes a Board of Review consisting of 03 judges of the Supreme People's Court to review judgments or decisions that have come into legal effect of the provincial People's Court. Decide to reject or accept the appeal, annul the judgment at first instance or appeal for retrial according to the first instance or appeal procedure or reinvestigate.

The Council of Judges of the Supreme People's Court, consisting of the Chief Justice, Deputy Chief Justice and a number of judges of the Supreme People's Court, reviews judgments or decisions that have come into legal effect of the Central Military Court, the Criminal Court, and the Courts of Appeal of the Supreme People's Court that are protested under the supervisory procedure. At least 2/3 of the members of the Council of Judges must participate in the majority vote to decide to reject or accept the supervisory protest, annul the appellate judgment for retrial under the first instance or appellate procedure, or reinvestigate. The Council of Judges' decision on supervisory review must be approved by more than half of the total number of members of the Council of Judges.

The review of legally effective judgments that are protested under the supervisory procedure is not a trial level, so there is no trial like the first instance and appeal. Only when deemed necessary, the Court will summon the convicted person, the defense attorney, and may summon those with rights and obligations.

The case related to the appeal participates in the review session. Usually, only members of the Review Council and representatives of the People's Procuracy. One member of the Council summarizes the content of the case and the appeal decision. The Council focuses on discussing and clarifying the factual basis and legal basis of the case as well as the factual basis and legal basis of the appeal decision. Consider whether the review appeal is accurate, within the time limit prescribed by law, whether the verdict seriously violates procedural law or whether the conviction and sentencing have serious errors. The Review Council must consider the entire case, not just limited to the content of the appeal. The review decision aims to annul criminal judgments that have come into legal effect and have seriously violated procedural law or procedural law.

Application of criminal law by the Court during the retrial phase

The retrial procedure is applied to a judgment or decision that has come into legal effect but is protested because new circumstances have been discovered that could fundamentally change the content of the judgment or decision that the Court was not aware of when issuing the judgment or decision.

Article 291 of the 2003 Criminal Procedure Code stipulates:

The circumstances used as the basis for appeal for retrial are:

1. Witness statements, expert conclusions, and interpreters' translations have important points that are found to be untrue;

2. The investigator, prosecutor, judge, or jury made incorrect conclusions, causing the case to be mistried;

3. Evidence, investigation records, records of other litigation activities or other documents in the case are forged or untrue;

4. Other circumstances that make the settlement of the case untrue [45].

Article 293 of the 2003 Criminal Procedure Code stipulates:

Those who have the right to appeal under the retrial procedure:

1. The Chief Justice of the Supreme People's Procuracy has the right to appeal under retrial procedures against judgments or decisions that have come into legal effect of courts at all levels, except for decisions of the Council of Judges of the Supreme People's Court.

2. The Chief Justice of the Central Military Procuracy has the right to appeal under retrial procedures against judgments or decisions that have come into legal effect of lower-level military courts.

3. The Chief Prosecutor of the Provincial People's Procuracy has the right to appeal under the retrial procedure against judgments or decisions that have come into legal effect of the District People's Court. The Chief Prosecutor of the Military Procuracy of the Military Region has the right to appeal under the retrial procedure against judgments or decisions that have come into legal effect of the Regional Military Court... [45].

Article 295 of the 2003 Criminal Procedure Code stipulates:

Time limit for appeal under retrial procedure:

1. A retrial in a direction unfavorable to the convicted person must be conducted within the statute of limitations for criminal prosecution prescribed in Article 23 of the Penal Code and the time limit for appeal must not exceed one year from the date the Procuracy receives information about newly discovered circumstances.

2. Retrial in favor of the convicted person is not limited in time and is conducted even in cases where the convicted person has died and needs to be vindicated [45].

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