In appeal proceedings, the law provides only limited possibilities for the appellate courts to establish substantive justice in their proceedings. The courts of appeal have the most extensive powers of review, which can, if necessary, conduct a full evidentiary hearing, the general reason for which is that the first instance decision is unfounded. It should be noted that this activity of the courts of appeal will, over time, lead to changes in the practice of the courts of first instance.

 

However, the principle of free assessment of the evidence and the rules of evidence laid down for first instance proceedings also apply in appeal proceedings. It is also clear that (1) the court of second instance may not assess the whole body of evidence differently, but may only act within the limits set out above; if the findings of the court of second instance were to conflict with the parts of the facts not in evidence, annulment can hardly be avoided; and (2) the court of first instance may not, in its assessment, take into account the evidence in its entirety. It is also possible to supplement or correct the facts of the conviction in the proceedings at second instance, a large number of which concern many elements, if the correct and complete facts can be established without any concern on the basis of the same evidence accepted as true by the court of first instance (this rule is obviously intended to avoid annulment on the ground of lack of foundation); and (3) the court of second instance may assess the evidence differently from the court of first instance if it acquits the accused on the basis of the content of the documents or the factual conclusion.3

 

Afterwards, the members of the court, the prosecutor, the accused, the defence and the victim may ask for the case to be supplemented, and the appellants must be given the opportunity to make their observations or motions. Only then must the court take evidence on the merits, after which, according to the general rules, the pleadings and speeches are declared closed.6 It should be noted that, in order to eliminate the burden of proof and to shorten the appeal procedure, the Code of Criminal Procedure provides that decisions on the acquittal of the accused must, as a general rule, be taken in a deliberation session,7 with the possibility of requesting a public session or a hearing within the time limit for submitting observations.8

 

Restrictive rules: