III. RESULTADOS Y DISCUSIÓN
3.3 Adecuación del sistema de nanopartículas
3.3.2 Caracterización en el proceso de adecuación por microscopia electrónica de
appropriate manner. The public session will then be held even in the absence of the owner of the property, regardless of whether the owner of the property was aware of it.
(3) A complaint is admissible against the decision on the appointment of a guardian. CHAPTER FIFTEEN Closed Session Section 240
The court decides in a closed session in cases, where the law does not stipulate that a decision is to made in the trial or public session.
Section 241 Repealed Section 242
(1) The closed session shall take place in the presence of all members of the court and the court reporter.
(2) Other persons are excluded from participation in the closed session.
Section 243
If it is necessary to produce evidence in the closed session, it shall be done by reading protocols and other documents.
Section 244
The decision shall always be declared.
CHAPTER SIXTEEN
Appeals and Appeal Proceedings Section 245 Admissibility and Effect
(1) A remedial measure against a judgment of the court in the first instance is an appeal. An appeal against a judgement, by which the court approved an agreement on the guilt and punishment, may be lodged only in case such a judgement is not in compliance with the agreement on the guilt and punishment, approval of which has the public prosecutor petitioned to the court. The aggrieved person, who has applied a claim for compensation of
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damage or non-material harm or for the surrender of unjust enrichment, may lodge an appeal for incorrectness of the verdict on the monetary compensation of damage or non-material harm or for the surrender of unjust enrichment, unless he consented in the agreement on the guilt and punishment with the extent and manner of compensation of damage or non-material harm or for the surrender of unjust enrichment and this agreement has been approved by the court in a form he agreed with.
(2) The appeal has a dilatory effect.
Entitled Persons
Section 246
(1) A judgment may be contested by an appeal
a) by the public prosecutor for the inaccuracy of any verdict,
b) by the defendant for the inaccuracy of any verdict which directly affects him, c) by the party concerned for the inaccuracy of verdicts on forfeiture of items,
d) the aggrieved person who applied his claim for compensation of damage or non- material harm or for the surrender of unjust enrichment, for the inaccuracy of the verdict on the compensation of damage or non-material harm or for the surrender of unjust enrichment.
(2) A person entitled to challenge the judgment for the inaccuracy of any of its verdicts may also challenge it because such a verdict has not been made, as well as for the violation of provisions on the proceedings preceding the judgment, if this breach could have caused that a verdict is incorrect or missing.
Section 247
(1) Only the public prosecutor may challenge the judgment by an appeal to the detriment of the defendant; the aggrieved person, who filed a claim for monetary compensation of damage or non-material harm or for the surrender of unjust enrichment, has the same right, but only concerning the obligation to pay the compensation of damage or non-material harm or for the surrender of unjust enrichment.
(2) In addition to the defendant and the public prosecutor, the direct relatives of the defendant, his siblings, adoptive children, adoptive parents, spouse, and partner may also challenge the judgment by an appeal for the benefit of the defendant. The public prosecutor may do so even against the will of the defendant. If the defendant is legally incapacitated or if his legal capacity is restricted, his statutory representative and defence counsel may also submit an appeal for the benefit and against the will of the defendant.
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(1) An appeal shall be filed at the court, the judgment of which it contests, within eight days from the service of the copy of the judgment.
(2) If the judgment is served to the defendant as well as to his defence counsel and statutory representative, then the time starts on the day of the service that was performed last.
(3) For other persons referred to in Section 247 (2), except for the public prosecutor, the time limit ends on the same day as the for the defendant.
Section 249 Contents of Appeal
(1) An appeal must be justified within the time limit referred to in Section 248 or in an additional period set by the presiding judge of the court of the first instance according to Section 251in such a way that it is clear in which verdicts is the judgement contested and what errors of the judgement or the proceedings preceding the judgement are challenged. The entitled persons must be instructed thereof.
(2) The public prosecutor is obliged to indicate in an appeal whether he file it, even in part, in favour of or to the detriment of the accused person.
(3) An appeal may be based on new facts and evidence.
Section 250 Waiving and Withdrawing an Appeal
(1) After the announcement of the judgment, the entitled person may expressly waive the appeal.
(2) The person who filed the appeal may withdraw it by an explicit declaration at any time until the appeal court retires for the final deliberation. An appeal of the public prosecutor may also be withdrawn by a senior public prosecutor.
(3) An appeal filed in favour of the defendant by another entitled person or by his defence counsel or statutory representative may be withdrawn only with the explicit consent of the defendant. However, the public prosecutor may withdraw such an appeal even without the consent of the defendant. In such a case, a new deadline for filing an appeal for the defendant starts running from the notice of the withdrawal of the appeal.
(4) The presiding judge of the appeal court shall acknowledge the withdrawal of the appeal by a resolution, unless there are obstacles, and if the case has not yet been submitted to this court, it shall be acknowledged by the presiding judge of the court of the first instance.
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(1) If the appeal of the public prosecutor, the appeal filed by the defence counsel for the defendant, or the appeal filed by an agent filed for the aggrieved person or for the party concerned, does not meet the requirements for the content of an appeal according to Section 249 (1), the presiding judge shall bid them to correct the errors within a five-day set for this purpose, and shall advise them that the appeal will otherwise be dismissed under Section 253 (3). The presiding judge shall proceed in a similar manner if such an appeal is filed by the defendant who has a defence counsel, the aggrieved person, or the party concerned, who has an agent.
(2) If the defendant, who filed an appeal that does not meet the requirements for the content of an appeal pursuant to Section 249 (1), does not have a defence counsel, the presiding judge shall bid him to remove any errors within an eight-day period and shall provide him with the necessary instructions on how to correct them. If it did not lead to a correction or if the nature of the case requires it and the defendant did not choose a defence counsel, the presiding judge shall appoint one to him only for the purpose of justified appeal, or also for the purpose of defence in the appeal proceedings, and shall further proceed in accordance with sub-section (1). In the case of the aggrieved person and the party concerned, who do not have agents, the presiding judge shall proceed accordingly.
(3) Once the time limits for filing an appeal and the time limits for correcting the appeal errors have expired for all entitled persons, the presiding judge shall serve a copy of the appeal and its justifications to other parties and submit the files to the appeal court without awaiting their comments.
Section 252 Court of Appeal
An appeal against a judgment of the District Court is decided by a superior Regional Court, and an appeal against the judgment of a Military Circuit Court is initially decided by a superior military court. The appeal against a judgment of the Regional or a higher military court as the court in the first instance is decided by the superior High Court.
Decision of Appeal Court Section 253
(1) The court of appeal shall dismiss the appeal if it was filed late, by an unauthorised person, or by a person who has explicitly waived the right to an appeal or re-appealed on the same case in which he has previously expressly withdrawn the appeal.
(2) A late appeal cannot be dismissed if the person filed it late only because they followed incorrect instructions of the court.
(3) The court of appeal shall reject an appeal that does not meet the requirements for the contents of an appeal.
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(4) An appeal may not be rejected in accordance with sub-section (3), if the entitled person was not duly instructed pursuant to Section 249 (1), or the entitled person who does not have a defence counsel or an agent was not provided with assistance in correcting the errors in the appeal (Section 251 (2)).
Section 254
(1) If the court of appeal does not dismiss or reject an appeal under Section 253, it shall review the legality and justification of only those separable verdicts of the judgment against which an appeal was filed, including the correctness of the procedure of the proceedings that preceded it in the view of the alleged errors. Any errors that are not contested by the appeal shall the court of appeal consider only if they affect the accuracy of the verdicts against which the appeal was filed.
(2) However, if the alleged errors originate in a verdict other than the one against which the appeal was filed, the court of appeal shall also examine the correctness of such a verdict, which the contested verdict follows, if the entitled person could have filed an appeal against it.
(3) If the entitled person files an appeal against a verdict of guilt, the court of appeal shall always examine, in relation to the alleged errors, the verdict on the punishment, as well as other verdicts that have their basis in the verdict of guilt, regardless of whether the appeal was also filed against these verdicts.
(4) If an appeal contests a part of the judgment related only to some of several persons concerning whom it was decided by this judgment, the court of appeal shall examine only the part of the judgment and the preceding proceedings related to such person in the manner mentioned above.
Section 255
(1) The court of appeal shall suspend the criminal prosecution if the appeal proceedings reveal that some of the circumstances referred to in Section 173 (1) b) through d) occurred after the declaration of the contested judgment, if the writ of summons to the public session of the court of appeal cannot be served to the defendant, or on the grounds referred to in Section 9a.
(2) The court of appeal shall suspend the criminal prosecution if it believes that the law which was applied in the given criminal case by the court of the first instance in the course of making a decision on guilt and punishment is inconsistent with the constitutional law, or an international treaty that takes precedence over the law; in such a case it shall refer the matter to the Constitutional Court.
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The court of appeal shall dismiss the appeal should they find it unjustified.
Section 257
(1) The court of appeal shall repeal the contested judgment or its part and within the scope of the repeal it shall
a) decide to submit the matter to a decision on jurisdiction of the court that is commonly superior to the court of the first instance and the court that is according to them competent, and if the court in the first instance should have acted in this way (Section 222 (1); if the commonly superior court is the court of appeal, it shall promptly decide to assign the matter to the competent court,
b) refer the matter to another authority, if the court of the first instance should have done so (Section 222 (2)),
c) discontinue the criminal prosecution, if it finds that there is any of the circumstances, which would justify the discontinuation of the criminal prosecution by the court of the first instance (Section 223 (1), (2)),
d) suspend the criminal prosecution, if the court of the first instance should have done so (Section 224 (1), (2) and (5)).
(2) If the court of appeal finds that there is any of the circumstances referred to in Section 11 (1) a), b) and i), which occurred after the declaration of the contested judgment, it shall decide to discontinue the criminal prosecution without repealing the contested judgement.
(3) The appeal proceedings, during which the criminal prosecution was discontinued for any of the reasons referred to in sub-section (2), will be continued if the accused person declares within three days from the day they were notified of the resolution to discontinue the criminal prosecution he wishes to continue in the proceedings on the matter. The accused person must be instructed thereof.
Section 258
(1) The court of appeal shall also repeal the contested judgment
a) for substantial errors of proceedings that preceded the judgment, particularly due to a violation of provisions in such proceedings, which are supposed to secure clarification of the matter or the right of defence, if they could have affected the correctness and legality of the reviewed part of the judgement,
b) for judgment errors, especially for ambiguity or incompleteness of the factual findings related to the reviewed part of the judgment, or due to the fact that the court did not deal with all the relevant circumstances of such part important for the decision,
c) in case of occurrence of doubts about the correctness of the factual findings regarding the reviewed part of the judgment, the clarification of the matters requires repeated evidence or the presentation of further evidence and their presentation before the court of appeal would mean to substitute the work of the court in the first instance,
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d) in case of violation of provisions of the Penal Code in the reviewed part of the judgment,
e) if the imposed punishment within the reviewed part of the judgment is inadequate, f) if the decision on the asserted claim of the aggrieved person in the reviewed part of the
judgment is incorrect.
(2) If only part of the contested judgment is faulty and can be separated from the rest, the court of appeal shall repeal the judgment in that part; however, if it repeals, even only in part, the statement of guilt, the entire statement of punishment will always be repealed, as well as other statements that have their basis in the statement of guilt.
Section 259
(1) If it is necessary, after repealing the contested judgment or any of its part, to make a new decision in the matter, the court of appeal may return the case to the court of the first instance only if the error cannot be rectified during the public session, especially if the factual findings are insufficient, so it is necessary to repeat the trial or to conduct extensive and difficult to supplementation of evidence.
(2) If the error lies only in the fact that some verdicts of the contested judgement are missing or are incomplete, the court of appeal may return the case to the court of the first instance with an order to decide on the missing verdict again or to supplement the incomplete verdict without repealing the judgment.
(3) The court of appeal may decide in the matter itself by a judgment only if it is possible to make a new decision based on the facts which were correctly found in the contested judgment and eventually supplemented or changed on the basis of the evidence produced before the court of appeal. The court of appeal may divert from the factual findings of the court of the first instance only if during the appeal proceedings,
a) it produced some evidence important for the factual findings, which were already produced in the trial, or
b) it produced evidence that was not produced in the trial.
(4) The court of appeal may change the contested judgment to the detriment of the defendant only on the basis of an appeal of the public prosecutor that was filed to the detriment of the defendant; it may do the same in the verdict on the monetary compensation of damage or non- material harm or the surrender of unjust enrichment, based on the appeal of the aggrieved person who applied a claim for compensation of damage or non-material harm or the surrender of unjust enrichment.
(5) The court of appeal itself cannot
a) find the defendant guilty of an act, which he was acquitted of by the contested judgment,
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b) find the defendant guilty of a criminal offence more serious, than which the court of the first instance could have found him guilty of in the contested judgment (Section 225 (2)).
Section 260
If it is impossible to continue the trial proceedings after repealing the judgement due to an unrecoverable procedural error and there is no reason for another decision, the court of appeal shall return the case to the public prosecutor for further investigation. The provisions of Section 191 and Section 264 (2) shall apply accordingly.
Section 261
If the reason, based on which the court of appeal decided in favour of a defendant, also benefits another co-defendant or party concerned, the court of appeal shall decide also in their favour. Similarly they shall decide in favour of the defendant, to whom benefits the reason, based on which it decided in favour of a party concerned.
Section 262
If the court of appeal decides that the case shall be returned for further proceeding and a new decision to the court in the first instance, it may also order that the whole matter be tried and