The Dong Tam Case: What Happens Next?

On September 14, 2020, the Hanoi People’s Court delivered the judgments in the trial of the Dong Tam case.

What will happen next?

First of all, we need to understand this is a first-instance trial and the judgments have not yet come into force. The enforcement of criminal judgments therefore is not yet initiated.

Appeal

Within 15 days of the first-instance trial’s verdict, which is from September 14-29, 2020, there are two possible scenarios.

(Note: According to the instruction from the Supreme People’s Court, the time limit for appeal is calculated from the day after the verdict is delivered, which is September 15, 2020.)

1. If the rulings are not appealed, they will automatically come into force on the 16th day after the verdict was delivered, which will be on September 30, 2020. The sentence enforcement procedure will also be initiated on that day.

2. If the rulings are appealed:

• Appeal by the defendants: If any of the defendants, victims or their representatives appeal against the rulings, the case will move into the appellate trial phase. The whole trial will be restarted. In this case, the time limit for making an appeal is September 29, 2020.

If an appeal is filed beyond the 15-day limit, the appellate court can still consider it permissible “on condition that the appellant has been obstructed by force majeure or objective obstacles from lodging an appeal within the time limit as defined by this Law.” (Article 335, 2015 Criminal Procedure Code)

• Appeal by the Procuracy: If the Hanoi People’s Procuracy appeals against all or parts of the judgments, the case will also move into the appellate trial phase.

• Appeal by the Supreme People’s Procuracy in Hanoi: according to law, they have a 30-day limit to appeal the rulings after the verdict was delivered.

What is an appellate trial?

According to Article 330, 2015 Criminal Procedure Code, “Appellate trial means that the immediate superior Court re-tries a case or re-considers the decisions passed by the first instance trial, whose judgments and rulings pronounced for the case are appealed before coming into force.”

In other words, all or parts of the rulings will be re-considered by the immediate superior court.

What is the superior court in this case?

The People’s High Court in Hanoi

When will the appellate trial take place?

At the moment, there is no detailed instruction document on how to calculate the time frame to open the appellate trial, but based on the 2015 Criminal Procedure Code, we can estimate a number of markers for what happens next:

• Within 75 days upon the admission of a case, the People’s High Court in Hanoi has to issue a decision to hear the appellate case. Therefore, we can estimate in case of appeal, that the last day to issue the decision will be December 13, 2020 (Sunday). Since it is a non-working day, the time limit can be extended to December 14, 2020 (Monday).

• Within 15 days upon issuing the decision to hear the appellate case, the court has to start the appellate trial. Therefore, we can estimate in case of appeal the last day to start the appellate trial will be December 29, 2020 (Monday).

• Within 10 days upon issuing the decision to hear the appellate case, the court has to send this decision to the Procuracy–which is on an equal level of hierarchy–and to the defense counsels, crime victims, litigants and protectors of legitimate rights and benefits of crime victims, litigants, appellants, persons incurring interests and duties from the appeal. The last day of this time frame will be December 23, 2020 (Monday).

• The court can delay the appellate trial for no more than 30 days, which means the last day in this case could be on January 28, 2021 (Wednesday).

In practice, however, the court can violate the time limit regulations. The appellate trial therefore can be delayed to a much later time than the above estimated number of days.

While awaiting the appellate trial, what can happen?

• The People’s High Court can make decisions on changing or terminating preventive measures such as detention. Although practically, there is no possibility some defendants will be released on bail awaiting the appellate trial, yet it is still an available legal option.

• If the appellants withdraw the appeals, the court will suspend the appellant trial. In practice, this is also unlikely.

• The Procuracy, the defendants and their lawyers can submit additional evidence.

• The lawyers and family members are entitled to meet the defendants. Other individuals, organizations (the media, social organizations, international organization, etc.) can file proposals to meet with the defendants.

In order to better understand this case, we need to study thoroughly the Law on temporary detention and custody.

What are the possible outcomes of the appellate trial?

According to Article 355, 2015 Criminal Procedure Code, the possible outcomes of an appellate trial could be:

• Reject appeals and sustain the first-instance court’s judgments;

• Alter the first-instance trial’s judgments;

• Annul the first-instance court’s judgment and send the case back for re-investigation or retrial;

• Annul the first-instance trial’s judgments and dismiss the case;

• Terminate the appellate trial if the appellants withdraw their appeals.

In case of altering the first-instance trial’s judgments, if the appeals are filed by the defendants, the appellate court cannot deliver a harsher sentence than what has already been given to the defendants.

In case of altering the first-instance trial’s judgments, if the appeals are filed by the procuracy or the crime victims, the appellate court can deliver rulings that are disadvantageous to the defendants.

What may happen after the appellate trial?

The rulings from the appellate trial will come into force immediately.

If the appellate court sustains the first-instance trial’s judgments, or alters the judgments but sustains the sentences, the enforcement procedure will be initiated. The defendants become convicts (serve jail sentences, face death penalties). In this case, one must study thoroughly the Law on execution of criminal judgments.

The convicts with death sentences still have a chance to file pardon petition for commutation of death sentence with the state president (within 7 days after the appellate rulings were delivered), petition for a cassation trial, or file for a retrial of the case.

If the appellate court chooses to delivers other outcomes, then there are corresponding legal options for each scenario.

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This article was written in Vietnamese by Tran Ha Linh and previously published on Luat Khoa Magazine. The translation is done by Y Chan.