Appeal and Appeal Processes in Criminal Cases

Against the decision of the first instance court in a criminal case, an appeal can be made to the regional court of justice, and in some cases, an appeal can be made to the Supreme Court of Appeals.

Appeal — Regional Court of Justice (BAM)

• Duration: 7 days from the date of notification of the decision.
• Who can apply: Defendant, defense counsel, victim, attorney, prosecutor.
• Figure: Written petition; statement of justification.
• Review: Both in terms of material fact and legal qualification.
• Conclusion: Approval, reversal, approval with corrections or re-ruling.

Powers of BAM

• Evaluation of new evidence.
• Hearing witnesses (if necessary).
• Receiving an expert report.
• Changing the nature of the crime.
• Increasing or decreasing the penalty.
• Objection requirement for amendment against the defendant.

Appeal — Supreme Court

• Duration: 7 days from the notification of the BAM decision.
• Subject: Only legal audit (no factual audit).
• Which files can be appealed: Files of certain severity within the scope of CMK Article 286 (usually imprisonment for more than 5 years or BAM's reversal decision).
• Result: Approval, reversal, approval with corrections.

Grounds of Appeal

• Procedural irregularity in the trial.
• Legal characterization error.
• Incorrect determination of the penalty.
• Violation of logic in the evaluation of evidence.
• Allegations of rights violation (fair trial, right to defence).

Reasons for Overturning by the Supreme Court

• Incomplete research.
• Conflicting decisions.
• Do not rely on illegal evidence
• Unauthorized court.
• Violation of judicial procedure.
• Right violation.

"Reformatio in Pejus"

Only if the defendant or his defense counsel has filed an appeal/appeal, BAM/Supreme Court cannot increase the penalty against the defendant or add a new qualified case. This is the indispensable guarantee of the right to defence.

Processes — Typical Durations

• Appeal: 6 months - 2 years.
• Appeal: 1 to 3 years.
• The files of detained defendants are processed first.
• In complex cases (organization, heavy penalty) the periods are longer.

Supreme Court and CGK — Established Approach

The Supreme Court CGK and its chambers adopt that the appeal review should not be reduced to "formal control", the justification should be evaluated meticulously, and attention should be paid to allegations of rights violation.

The Constitutional Court and ECtHR Path

• Individual application to the Constitutional Court (30 days) after domestic remedies have been exhausted.
• Retrial or compensation if the Constitutional Court finds a violation.
• If the Constitutional Court is negative, application to the ECtHR (4 months).

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